FEDERAL COURT OF AUSTRALIA McWilliam v Civil Aviation Safety Authority [2004] FCA 1701 Civil Aviation Act, 1988 Administrative Decisions (Judicial Review) Act 1977 (Cth) Civil Aviation Regulations 1988 Kioa v West(1985) 159 CLR 550 State of South Australia v Slipper[2004] FCAFC 164 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 Fowell v Ioannou (1982) 45 ALR 491 Nashua Australia Pty Ltd v Channon (1981) 36 ALR 215 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Minister for Immigration and Ethnic Affairs v Haj-Ismail (1982) 40 ALR 341 Annetts v McCann (1990) 170 CLR 596 Attorney General (NSW) v Quin (1990) 170 CLR 1 R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213 Li Shuk Fan v Director of Immigration [2002] HKCAFA 2 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 Queensland Medical Laboratory & v Blewett (1988) 84 ALR 615 RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 185 ALR 573 Civil Aviation Safety Authority v Boatman [2004] FCAFC 165 Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Ha v NSW (1997) 189 CLR 465 State of South Australia v Slipper (2003) 203 ALR 473 M Allars, 'Reputation, Power and Fairness' (1996) 24 Federal Law Review 235 L Aitken, 'Jurisdiction, Liability and "Double Function" Legislation' (1990) 19 Federal Law Review 31 LUKE MAXWELL McWILLIAM & ANOR v CIVIL AVIATION SAFETY AUTHORITY VID 1127 OF 2004 SELWAY J 22 DECEMBER 2004 ADELAIDE (HEARD IN MELBOURNE) IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY VID 1127 OF 2004 BETWEEN: LUKE MAXWELL McWILLIAM FIRST APPLICANT SKYDIVE CITY PTY LTD ACN 101 558 892 SECOND APPLICANT AND: CIVIL AVIATION SAFETY AUTHORITY RESPONDENT JUDGE: SELWAY J DATE OF ORDER: 22 DECEMBER 2004 WHERE MADE: ADELAIDE (HEARD IN MELBOURNE) PURSUANT TO SECTION 16(1) OF THE ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977,THE COURT ORDERS THAT: 1. Instrument 63/04 made by the respondent on 13 February 2004 is quashed. 2. Instrument 64/04 made by the respondent on 13 February 2004 is quashed. 3. The matter of whether directions should be made by the respondent relating to the safety of air navigation at Barwon Heads aerodrome is referred back to the respondent for such further consideration and action as it thinks necessary or appropriate in accordance with law. 4. The matter of whether written specifications should be made by the respondent as to parachute descents at Barwon Heads aerodrome is referred back to the respondent for such further consideration and action as it thinks necessary or appropriate in accordance with law. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY VID 1127 OF 2004 BETWEEN: LUKE MAXWELL McWILLIAM FIRST APPLICANT SKYDIVE CITY PTY LTD ACN 101 558 892 SECOND APPLICANT AND: CIVIL AVIATION SAFETY AUTHORITY RESPONDENT JUDGE: SELWAY J DATE: 22 DECEMBER 2004 PLACE: ADELAIDE (HEARD IN MELBOURNE) REASONS FOR JUDGMENT 1 In these proceedings the applicants allege that two instruments issued by the respondent (CASA), being instruments 63/04 and 64/04 are invalid. Those instruments, if valid, had the practical effect of preventing the applicants from carrying on parachute operations at Barwon Heads aerodrome. Various orders are sought in relation to the alleged invalidity of the orders. Alternatively, the applicants say that CASA should now be required to issue further instruments so as to permit the applicants to resume parachute operations. For the reasons given below I am of the view that the instruments are invalid and should be quashed. 2 The first applicant ('McWilliam') is a shareholder, the sole Director and the Chief Executive Officer of the second applicant ('Skydive'). McWilliam is also the owner of part of the land comprising the Barwon Heads aerodrome. The owner of the remainder of the land is Ms Begg (Begg). 3 Skydive operates a parachute business at the aerodrome. For this purpose Skydive provides training to persons seeking to learn parachuting. It also provides aircraft and other facilities for experienced persons who wish to parachute. Skydive 'drops' between 14,000 to 20,000 parachutists per year. Those persons parachute onto the land comprising the Barwon Heads aerodrome. 4 CASA is established by s 8 of the Civil Aviation Act, 1988 ('the Act'). It is responsible for civil air safety regulation (s 9 of the Act). For present purposes, CASA has two particular powers. Regulation 92(2) of the Civil Aviation Regulations 1988 ('CAR') provides that CASA may issue directions in relation to an aerodrome. Regulation 92 provides: '(1) A person must not land an aircraft on, or engage in conduct that causes an aircraft to take off from, a place that does not satisfy one or more of the following requirements: (a) the place is an aerodrome established under the Air Navigation Regulations; (b) the use of the place as an aerodrome is authorised by a licence granted under regulation 89C; (c) the place is an aerodrome for which an arrangement under section 20 of the Act is in force and the use of the aerodrome by aircraft engaged in civil air navigation is authorised by CASA under that section; (d) the place (not being a place referred to in paragraph (a), (b) or (c)) is suitable for use as an aerodrome for the purposes of the landing and taking-off of aircraft; and, having regard to all the circumstances of the proposed landing or take-off (including the prevailing weather conditions), the aircraft can land at, or take-off from, the place in safety. Penalty: 25 penalty units. (2) CASA may, in relation to an aerodrome, issue directions relating to the safety of air navigation. (3) A person must not contravene a direction. Penalty: 25 penalty units. (4) An offence against subregulation (1) or (3) is an offence of strict liability. 5 Regulation 152 of CAR provides that CASA may issue 'specifications' in relation to parachute descents. It provides: '(1) A person must not make a parachute descent if the descent is not: (a) authorised in writing by CASA; and (b) conducted in accordance with the written specifications of CASA. Penalty: 25 penalty units. (2) An offence against subregulation (1) is an offence of strict liability. (3) It is a defence to a prosecution under subregulation (1) if the parachute descent was a necessary emergency descent.' 6 Pursuant to regulation 152 of CAR, CASA has issued Instrument CASA 262/02 providing that members of the Australian Parachute Federation (APF) may make parachute descents providing that those descents are conducted in accordance with the specifications set out in the Schedules to that regulation. 7 From at least 2001 CASA received a number of complaints as to the parachute activities conducted by Skydive. It is probably fair to say that some of those complaints related to alleged unsafe practices conducted by Skydive, or by parachutists who were using the facilities of Skydive. Other complaints may have related more generally to concerns that the parachute business operated by Skydive at Barwon Heads aerodrome were incompatible with other uses of that aerodrome. 8 CASA referred some of those concerns to the applicants for comment. Others were not referred for comment. There is nothing on the information before me to suggest that prior to January 2004 any prosecution action was taken against the applicants in relation to these concerns or that they were subject to any other regulatory action other than such requests for comment. 9 On 28 January, 2004 two officers of CASA, Mr Rothwell (Rothwell) and Mr Ward (Ward), visited at Barwon Heads aerodrome and met with various persons having an interest in the use of the aerodrome, including McWilliams, representatives of the APF and some of those that had complained about the parachuting operation. 10 Following that meeting, on 29 January 2004 CASA issued Instrument 34/04 pursuant to regulation 92(2) of CAR. That instrument required the pilot of an aircraft situated within 2 nautical miles of the aerodrome to ensure that a parachutist not make a descent unless flight visibility was at least 3 miles and that the descent was no closer than 600 metres horizontally from cloud. It also required that the pilot give notice to other aircraft that parachutists were intending to leave the aircraft. Also on 29 January 2004 CASA issued Instrument 36/04 pursuant to regulation 152 of CAR. That instrument was directed to parachutists. It limited the areas at the aerodrome in which parachutists could land, imposed other requirements in order to limit the interference of parachute operations with other uses at the aerodrome and imposed other obligations similar to those in Instrument 34/04. 11 Reports of breaches of the relevant Instruments continued to be made. On 7 February 2004 Ward attended at the aerodrome to observe parachuting operations. He observed parachutists skydiving through cloud. 12 On 13 February, 2004 Rothwell made Instrument Number 63/04 which revoked Instrument 34/04 and provided: 'The pilot in command of an aircraft engaged in a parachute operation must not permit a person to exit the aircraft to conduct a parachute descent within a 2 mile radius of Barwon Heads aerodrome.' 13 Also on that day Rothwell made Instrument Number 64/04 which revoked instrument CASA 36/04 and provided: 'A person must not conduct a parachute descent within 2 miles radius of Barwon heads aerodrome, Victoria.' 14 Copies of the instruments were forwarded to the applicants under cover of a letter dated 13 February 2004 signed by Rothwell. That letter provided in part: 'The directions are made in the interests of the safety of air navigation. They have been made to protect the safety of parachutists, aircraft and persons in the vicinity of Barwon Heads aerodrome. This is because since at least 2001, Luke McWilliam and Skydive City Pty Ltd have been a party to breaches of regulation 152 of the Civil Aviation Regulations 1988, when parachutists exiting from aircraft operated by Luke McWilliam and Skydive City Pty Ltd, including VH-MOS, have descended through cloud and near other aircraft.' 15 The practical effect of Instruments 63/04 and 64/04 was to curtail all parachute jumps at the Barwon Heads aerodrome. 16 Also on 13 February, 2004 day Rothwell signed a 'Notice of Proposed Cancellation or Suspension of certificate of Airworthiness for Aircraft VH-MOS' addressed to McWilliam. That Notice provided in part: 'Since at least 2001 Luke McWilliam and Skydive City Pty Ltd have been a party to breaches of regulation 152, when parachutists exiting from aircraft operated by Luke McWilliam and Skydive City Pty Ltd, including VH-MOS. have descended through cloud and near other aircraft. Party tobreaches of regulation 152 In an attempt to ensure that Luke McWilliam and Skydive City Pty Ltd did not continue to be a party to such breaches, I executed instruments 34/04 and 36/04 on 29 January 2004. However, on 7 February 2004 an officer ofCASA observed parachutists continuing to make descents through cloud from aircraft VH-MOS. Having regard to the continuing conduct of being a party to breaches by parachutists of regulation 152, Luke McWilliam and Skydive City Pty Ltd have demonstrated a contempt and disregard for the Civil Aviation Regulations 1988. As they have continued to ignore the requirements of regulation 152, I consider itin the interests of aviation safety to cancel the certificate of airworthiness of aircraft VH-MOS pursuant to regulation 21.181(6)(b) of the Civil Aviation Regulations 1998.... In my view, it would appear the only manner in which the aircraft will not be used by you and parachutists in breach of regulation 152 is to cancel its certificate of airworthiness SHOW CAUSE I am allowing you until 20 February 2004 to provide me in writing with reasons why I should not cancel or suspend the certificate of airworthiness of aircraft VH­-MOS.' 17 Given the terms of that Notice it is, perhaps, not surprising that no further action has been taken in relation to it. For the purpose of these proceedings, the only relevance of the Notice is the information within it as to the bases upon which Rothwell issued Notices 63/04 and 64/04. 18 It is not disputed that the events observed by Ward on 7 February 2004 were not put to the applicants. In particular, it is not disputed that it was not put to them that since 2001 they had engaged in 'continuing conduct of being a party to breaches by parachutists of regulation 152'. It is not disputed that they were never informed that CASA would or might make Instruments the effect of which was that no parachute jumps (with the exception of emergency jumps) could take place at Barwon Heads airfield. 19 On 19 February 2004 Rothwell issued Instrument Number CASA 75/04 which had the practical effect that no parachute jumps could take place at a number of aerodromes near Barwon Heads, namely Geelong, Torquay, Lovely Banks, Ceres and Avalon aerodromes. In relation to that Notice, Rothwell informed McWilliams by memo dated 20 February, 2004 that: 'This instrument is issued because of a long and well established history of Skydive City refusing firstly to comply with the normal APF Operational Specifications in regard to remaining clear of cloud and then breaching the CASA Instrument requiring their operations to remain in VMC - in each case being rules to provide for aviation safety. The behaviour of Skydive City both in relation to weather conditions and where parachutists manoeuvre and subsequently land has established a history of lack of recognition of aviation safety and the need to comply with rules established for the safety of other airspace users and those on the ground. Final evidence is the immediate action of this operator. when banned from dropping close to one aerodrome to go and start dropping parachutists within the circuit of another aerodrome. The purpose of instrument 75/04 is to raise the level of aviation safety for all aircraft operations in the Bellarine Peninsula. It may alsohave the effect of raising the safety standard for personsdropped by parachute by Skydive City.' 20 On 26 February 2004 a meeting was held between various CASA officers (including Rothwell and Ward), representatives of APF and McWilliams with his lawyer. At that meeting the issues of safety that concerned CASA were discussed in detail. At that meeting a proposed 'model' for the safe operation of Barwon Heads aerodrome was discussed. CASA agreed that it would discuss the model with Begg and with other users of the aerodrome. A CASA officer, Mr Ogilvie (Ogilvie) conducted those discussions on 27 and 28 April, 2004. As a result of those discussions Ogilvie presented a report to CASA dated 7 May, 2004. In that report Ogilvie commented: 'Upon reflection it would appear that with the exception of jumping through cloud, CASA has lots of allegations but very little in the way of substantive evidence of illegal and/or inappropriate behaviour by the parachute operation and/or the resident pilots. There is certainly a significant level of conflict in the area, which appears to contain a substantial element of personality clash.' Ogilvie identified 3 possible options to deal with the situation, two of which involved doing nothing or revoking the Instruments. The third option was to seek some mediated agreement between the parties. Ogilvie pointed out that this third option involved significant risks for CASA as its failure might mean that 'CASA may not be in a position to then take any substantive action'. Ogilvie nevertheless recommended the adoption of the mediation option. 21 CASA agreed to pursue such mediation, although it did not itself take part in it. It arranged the mediator. The mediation involved the applicants and Begg. The issue for mediation involved future parachuting operations at the aerodrome. The mediation was conducted on 4 June, 2004. It resulted in a Heads of Agreement. 22 The Heads of Agreement was forwarded to CASA. McWilliam had a number of conversations with CASA officers. As a result of those discussions he expected a recommendation to be made within CASA that a new Instrument be issued to reflect the Heads of Agreement. 23 On 25 June 2004 Rothwell advised Mr Gemmell (who was by then the relevant decision maker) that he should not sign the draft Instruments which had been prepared to give effect to the Heads of Agreement. 24 Begg subsequently purported to withdraw from the Heads of Agreement. 25 On 30 March, 2004 the Commonwealth DPP issued charges against McWilliam in the Victorian Magistrate's Court alleging 20 breaches of regulation 152 of CAR in 2003 and one breach of regulation 42U of CAR in 2002. McWilliam pleaded guilty to these charges on 6 July 2004. The learned Magistrate found the charges proved, but discharged the defendant without proceeding to conviction upon McWilliam agreeing to be of good behaviour for 12 months and agreeing to a recognizance of $5000 and agreeing to pay $10000 to the Geelong Hospital. 26 On 13 August 2004 Rothwell advised Mr Gemmell that in light of Begg's withdrawal, the proposed 'mediated solution' was no longer appropriate. He recommended that the status quo be maintained. On 19 August 2004 Rothwell again recommended to Mr Gemmell that the status quo be maintained. He discussed four options, option one of which was the retention of the status quo. He advised: 'CASA knowledge of McWilliam's operation indicates a pattern of non­compliance over a considerable period. CASA has sent Compliance staff to YBRS on a number of occasions and despite knowing of our presence and that of the Chief Executive of the APF Mr McWilliam permitted parachuting through cloud. Further instances were observed by an unannounced audit which resulted in the issuance of the current instrument. The Court found proven 21 instances of parachuting through cloud by Mc William. The APF has actively refused to provide CASA with the identity information of other individuals for whom CASA can demonstrate illegal operations. Far from assisting CASA to secure compliance, the APF is actively frustrating that action. Therefore I have no confidence in the APF taking any significant compliance action. Mr Ogilvie reports "The APF is unlikely to pull McWilliam into line." CASA arranged mediation between the parties however according to one party, that mediation was approached in the context of having to find a solution that allowed Mr McWilliam back on Barwon Heads aerodrome. Mrs Begg as operator of the Aerodrome and of an AOC holding flying training school has since withdrawn from the mediated outcome on this basis and on the basis of the results of the legal action. It is noted that CASA has no specific power to remove a repetitively non compliant parachute business operator from his participation in aviation or parachuting. No other aviation participant would be permitted to continue in operation with this man's track record. Compare even the infringement system outcome if that were able to be applied to his situation. Legal advice is that it would be possible to issue a new CAR 152 general parachuting instrument naming him and excluding him from coverage and thus a permission to engage in parachuting however it could not exclude him from continuing to run the parachuting business but only from actually jumping himself - an outcome not worth pursuing in safety terms. … RECOMMENDED DECISION: If I as the responsible manager were taking this decision I would leave the Status Quo - Option One in place. I do recognise this is not a clean issue and there are arguments for other courses of action including allowing parachuting to resume at YBRS subject to safety conditions. The history of the parachuting operator's non compliance with regulatory requirements and the APF's history of both non enforcement and obstruction of CASA efforts means that any relaxation of the existing ban needs to be such that the compliance with conditions can be clearly determined and evidenced. Because of the ill will of all participants and the difficulty in ensuring compliance with necessary conditions is maintained, I recommend Option One but the safest option that allows parachuting to return to YBRS is Option Four [New CAR 92 imposing segregated operations within the aerodrome].' 27 There is no information before me to show that CASA has made a deliberate decision to adopt Rothwell's recommendations. On the other hand, the relevant Instruments remain in place. 28 The applicants say that the decision of CASA to make Instruments 63/04 and 64/04 entitles them to apply under s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act') for an order of review. That provides: '(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds: (a) that a breach of the rules of natural justice occurred in connection with the making of the decision;' 29 The applicants say that the decision in this case was a decision made under an enactment. They say that CASA was required to afford to them a right to be heard before making the relevant decision and that its failure to afford them a right to be heard was a breach of the rules of natural justice. 30 Section 5(1)(a) of the ADJR Act reflects the usual rules of administrative law: see Kioa v West(1985) 159 CLR 550 at 567. Consequently, subject to any express statutory limitation or qualification, the usual principles apply in determining whether the rules of natural justice are attracted to a particular decision and what those principles require in a particular case. The usual principles were usefully summarised by Finn J in State of South Australia v Slipper[2004] FCAFC 164 at [93]: 'Stated in short form those principles are: (i) when a statute confers a power on a public official the exercise of which affects a person's rights, interests or expectations, the rules of procedural fairness regulate the exercise of that power unless those rules are excluded by express terms or by necessary implication: Kioa v West (1985) 159 CLR 550 at 584; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 93; on "necessary implication", see B v Auckland District Law Society [2004] 1 NZLR 326 at 349; (ii) a legislative intention to exclude the rules will not be assumed or spelled out from indirect references, uncertain inferences or equivocal considerations: Commissioner of Police v Tanos (1958) 98 CLR 383 at 396; (iii) an intention to exclude should not be inferred merely from the presence in the statute of rights which are commensurate with some of the rules of procedural fairness: Annetts v McCann (1990) 170 CLR 596 at 598; and (iv) while the rules may be excluded because the power in question is of its nature one to be exercised in circumstances of urgency or emergency: Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 at 241; "urgency cannot generally be allowed to exclude the right to natural justice": Minister for Aboriginal and Torres Strait Islanders Affairs v State of Western Australia (1996) 67 FCR 40 at 59; although it may in the circumstances reduce its content: J Wattie Canneries Ltd v Hayes (1987) 74 ALR 202 at 214; State of Western Australia v Native Title Registrar (1999) 95 FCR 93.' 31 It is clear that the obligation upon a decision maker to afford a fair hearing to a person is not limited to instances where the decision would affect the legal rights of that person. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (Ainsworth), for example, a right to a fair hearing arose because the relevant inquiry (and subsequent report) adversely affected the 'business reputation' of the plaintiff. So, too, decisions which would affect the ability of a person to earn a livelihood may give rise to an obligation to afford a fair hearing. The extent and nature of the interference with the person's ability to earn an income are relevant to the issue. A decision not to permit a person to engage in a trade or calling for which the person is otherwise qualified would almost certainly give rise to an obligation to afford a fair hearing: see Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; but a decision by a particular employer not to employ a person may not: see Fowell v Ioannou (1982) 45 ALR 491 at 510-511 unless the decision was based upon some adverse finding relating to the person's reputation or capacity: see M Allars, 'Reputation, Power and Fairness' (1996) 24 Federal Law Review 235. Similarly, a discretionary decision whether or not to grant a statutory licence may not involve an obligation to afford a fair hearing: see Nashua Australia Pty Ltd v Channon (1981) 36 ALR 215, whilst a decision not to renew a statutory licence may give rise to such an obligation at least if there was a reasonable expectation that it would be renewed: see FAI Insurances Ltd v Winneke (1982) 151 CLR 342 contrast Minister for Immigration and Ethnic Affairs v Haj-Ismail (1982) 40 ALR 341 at 348. 32 These are merely examples of the general proposition that the obligation to afford a fair hearing both at common law and under 5(1)(a) of the ADJR Act arises in a variety of circumstances which extend beyond strict 'legal rights'. On the other hand, the obligation does not arise merely because a person is 'affected' by the relevant decision. 33 The High Court attempted to explain the circumstances in which such an obligation arose by referring to the concept of a 'legitimate expectation': see Annetts v McCann (1990) 170 CLR 596 at 598; Ainsworth at 576. Concerns were expressed at the time, most noticeably by Brennan J, that that description did not assist in identifying the circumstances where a duty to afford natural justice arose: see, for example, Attorney General (NSW) v Quin (1990) 170 CLR 1 (Quin) at 38-41. Further, Brennan J expressed concern that the concept of 'legitimate expectation' might be used not merely to identify the circumstances where a duty to afford a fair hearing might arise, but as a basis for the enforcement of the relevant expectation. Such a use of the concept seems subsequently to have occurred in England and elsewhere: see, for example, R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213; Li Shuk Fan v Director of Immigration [2002] HKCAFA 2 [87]-[99]. 34 The concerns noted by Brennan J have recently been taken up by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 (Lam) see Gleeson CJ at [28], [32]-[34]; McHugh and Gummow JJ at [47]-[48], [61]-[67], [81]-[83]; Hayne J at [116]-[121]; Callinan J at [140]-[148]. The comments by the High Court in that case confirm that the concept of 'legitimate expectation' should be understood as reflecting the proposition already referred to, namely that the obligation to afford a fair hearing arises in a variety of circumstances which extend beyond strict 'legal rights', but that the obligation does not necessarily arise even where a person is affected by the relevant decision. 35 In this case the interests of the applicants arise from the business operated by them at Barwon Heads airport and from the specific interests of McWilliam in owning part of that airport. In my view those interests, against the background of the manner and nature of regulation of parachuting, were such as to give them a legitimate expectation that they could continue operating that business. 36 In my view the applicants also had a legitimate expectation that in the absence of any valid determinations to the contrary, CASA would not conclude that they had 'been a party to breaches of regulation 152 of the Civil Aviation Regulations 1988, when parachutists exiting from aircraft operated by Luke McWilliam and Skydive City Pty Ltd, including VH-MOS, have descended through cloud and near other aircraft'. 37 On the face of it, such legitimate expectations would give rise to a corresponding obligation upon CASA to afford the applicants a right to be heard before making any decision which affected that legitimate expectation. 38 CASA argues that there was no obligation to afford natural justice in this case for two reasons. The first, is that CASA says that the relevant decision was not a 'decision to which the Act applies' for the purpose of s 5(1) of the ADJR Act. That term is defined in s 3 of the ADJR Act. For present purposes the term includes a decision made under the Act, providing it is a decision of an 'administrative character'. CASA argues that the decisions in this case are not decisions of an 'administrative character'. 39 For this purpose CASA seeks to distinguish decisions of an administrative character from those of a legislative character. I note that this distinction would seem to have been drawn in some of the cases. For example, Gummow J in Queensland Medical Laboratory & v Blewett (1988) 84 ALR 615 (Blewett) at 633-634 drew attention to the constitutional distinction between legislative, executive and judicial powers and then sought to identify the relevant characteristics of 'administrative' decisions by reference to that distinction. The Full Court did the same in RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 185 ALR 573 (RG Capital)at 580 ff. However, these decisions should not be understood as suggesting that administrative and legislative decisions fall into two mutually exclusive categories and that such categories can be identified by particular characteristics. 40 Even in relation to the distinction between judicial and executive decisions it is not possible to draw clear distinctions based upon specified criteria. I attempted to make this point in Civil Aviation Safety Authority v Boatman [2004] FCAFC 165 at [75] 'However, the basic problem with any analysis based solely upon the consideration of a number of factors, whether individually or cumulatively, is that it provides no sound basis for identifying what is, and what is not judicial power at least in those instances where the issue is not clear and obvious. The areas of overlap between, for example, many judicial and executive functions is considerable: see Pasini v United Mexican States(2002) 209 CLR 246 (Pasini) at 265. One of the functions of the executive is the enforcement of the law. Although the executive is required to defer to the judiciary as to what the law is, there can be no objection otherwise to the executive determining for itself what the law requires in any particular instance. Indeed, subject to the proper role of the courts, the executive is required to do so: A v Hayden(1984) 156 CLR 532 at 562; P & C Cantarella v Egg Marketing Board[1973] 2 NSWLR 366 at 383. For that purpose administrative tribunals and other administrative decision makers can determine legal issues in the context of making administrative decisions: see Drake v Minister for Immigration & Ethnic Affairs(1979) 24 ALR 577, 584-585. In making those decisions they are usually required to adopt procedures which bear some similarity to those adopted in some courts. As McHugh J noted in the above quotation from Nicholas, there are many decision making functions which could lawfully be conferred by the Parliament either on an administrative body or on a court. In relation to those functions the distinction between what is a judicial function and what is not will largely be dependent upon what body has been chosen to perform the task, rather than anything inherent in the task itself: see R v Hegarty; Ex parte City of Salisbury(1981) 147 CLR 617 at 628; HA Bachrach Pty Ltd v Queensland(1998) 195 CLR 547 at 562. Not only is there no "bright line" distinction between judicial and other governmental functions there is, in fact, no line at all in relation to these significant areas of functional overlap.' 41 That difficulty is exacerbated in relation to administrative functions simply because, under the Westminster system of government, the executive branch may exercise legislative powers delegated by the Parliament. This has the practical effect that it is impossible under Australian constitutional arrangements to draw a clear or 'bright line' distinction between legislative and administrative powers. 42 Of course, the ADJR Act does not require that any such distinction be drawn. What it requires is the identification of a 'decision of an administrative character'. Certainly there are some decisions which are not administrative because they are essentially 'legislative' or 'judicial'. However, that does not mean that all decisions must be in one category or another. Although it may be that a particular decision under the Commonwealth Constitution could not be both a judicial and an executive decision (although which it is may depend upon the nature of the body that exercises it), there is no reason in principle why the same decision could not be described as being both an administrative and a legislative decision. If it is then it answers the relevant description of a 'decision of an administrative character' for the purposes of the ADJR Act, notwithstanding that it may also be 'legislative'. 43 In any event, the relevant decisions in this case were clearly decisions of an administrative character. As Mr Tracey QC, who appeared for CASA, properly conceded, a decision of CASA under regulation 92(2) and 152 of CAR could be 'legislative' or 'administrative' depending upon the nature of the decision and who it affected. For example, a decision requiring all pilots to adopt a particular safety procedure when approaching airports might be viewed as a broad policy decision which might be characterised as being a decision that was not of an administrative character. On the other hand, a decision that a major airport was unsafe for use by commercial airlines and prohibiting that use might be characterised as an administrative decision. Such a decision would be made by a statutory body (rather than by the Parliament or the Governor General in Council), it would be made in an 'Instrument' (rather than by an Act or Regulation), it would relate to a specific airport, it would be based upon specific findings, rather than broad policy considerations and so forth. 44 In this case it is clear that the reason for making Instruments 63/04 and 64/04 was the reason given by Rothwell for doing so and set out in his correspondence. Rothwell concluded that the applicants had breached the regulations and that 'they had demonstrated a contempt and disregard for the Civil Aviation Regulations 1988'. That decision was plainly not a legislative decision. It was not argued that it was beyond power as a judicial decision. In those circumstances it was plainly a decision of an administrative character. 45 The second argument put by CASA was that it was unnecessary to afford the applicants a fair hearing because of the urgency of the need to safeguard the safety of operations at Barwon Heads aerodrome. There are three answers to this. The first is that there is no evidence to show that the situation was urgent. The problem, whatever it was, had existed for months if not years. For much of that time CASA was apparently content to leave the situation to be handed by the APF. The second is that even if it were urgent, there was no reason why the applicants should not have been afforded a truncated hearing: see Slipper at [127]. The third is that, whilst urgency will sometimes permit temporary action pending the opportunity for a final determination of the issues (see Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 513-515) that is not what occurred in this case. Rothwell reached final conclusions as to the fault of the applicants. Whatever occurred thereafter it was clear that he had already made the findings that he did make. Those findings were made without giving the applicants an opportunity to be heard. 46 In my view this is a very clear case where CASA was obliged to afford the applicants a right to be heard before making Instruments 63/04 and 64/04. There is no dispute that no such right was afforded to the applicants. 47 I note that the applicants have not pursued other grounds of alleged invalidity of Instruments 63/04 and 64/04. I make no comment on whether the findings and reasoning of Rothwell in making those Instruments was otherwise within power. 48 The applicants also claim relief pursuant to s 6 of the ADJR Act on the basis that the process engaged in by CASA in the subsequent review of Instruments 63/04 and 64/04 involved a breach of the rules of natural justice (s 6(1)(a) of the ADJR Act). The applicants argued that by reason of the mediation process they had a legitimate expectation that the Instruments would be varied so as to reflect the Heads of Agreement. They agreed that CASA was obliged to afford the applicants a fair hearing before determining not to make such an Instrument. 49 There are a number of problems with this argument. First, the issue does not arise if the initial Instrument is invalid. Second, the argument involves an attempt to turn a 'legitimate expectation' into a substantive right, in this case the right to have the powers conferred under regulations 92 and 152 of CAR exercised in a particular way. Third, there can be no 'legitimate expectation' if it would improperly fetter a statutory discretion: see Quin at 17, 40-41. In this case the applicants claim that they had a legitimate expectation that CASA would act to give effect to a mediated outcome of a dispute between the applicants and other users of the airport, represented by Begg. Given the nature and extent of the powers held by CASA, and the evident purpose for which it has those powers, it may be doubted whether CASA could lawfully act for the purpose of giving effect to the Heads of Agreement. In any event I do not accept that the applicants could hold a legitimate expectation that CASA would do so. 50 For these reasons I do not accept that the failure of CASA to afford the applicants a right to be heard in relation to giving effect to the Heads of Agreement gives rise to any right of review under s 6(1)(a) of the ADJR Act. 51 CASA failed to give the applicants a fair hearing prior to making Instruments 63/04 and 64/04. In this case the relevant powers of the Court are those conferred by s 16(1) of the ADJR Act: '(1) On an application for an order of review in respect of a decision, the Federal Court or the Federal Magistrates Court may, in its discretion, make all or any of the following orders: (a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies; (b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit; (c) an order declaring the rights of the parties in respect of any matter to which the decision relates; (d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.' 52 It would seem clear that a decision made in breach of the requirements of a fair hearing is invalid: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Without seeking to limit the breadth of the powers conferred by s 16(1) of the ADJR Act, it is my view that the most appropriate course generally in relation to decisions which are invalid, is that they should be quashed and referred back to the decision maker for further consideration. That is particularly so in this case involving, as it does, issues of air safety and the competing use of licensed facilities. Although both parties have put before the Court material relating to the merits of their respective positions, it is not appropriate that the Court perform the administrative functions conferred under the Act upon CASA. 53 CASA requested that the Court stay any order it might make under s 16 of the Act. Again without seeking to limit the breadth of the powers under s 16 of the ADJR Act, in my view it is inappropriate to stay an order for the apparent purpose of seeking to preserve the continued operation of an invalid administrative decision: see Ha v NSW (1997) 189 CLR 465 at 503-504. 54 The applicant also argued that this Court had jurisdiction under s 39B(1A)(c) of the Judiciary Act, 1903 (Cth) on the basis that the matter 'arose under a law of the Parliament'. That argument raises a number of interesting questions, including the source of the requirements of natural justice under the 'general' law (see State of South Australia v Slipper (2003) 203 ALR 473at [19]-[20]), and the source of the power to confer a remedy for breach of those requirements (see L Aitken, 'Jurisdiction, Liability and "Double Function" Legislation' (1990) 19 Federal Law Review 31 at 39-45). In the circumstances it is unnecessary to consider them. It is sufficient that this Court has jurisdiction under the ADJR Act. For the reasons given I am satisfied that it does. 55 For these reasons the Instruments 63/04 and 64/04 made by the Civil Aviation Safety Authority on 13 February 2004 are invalid and must be quashed. The question of what Instruments should be made pursuant to regulations 92 and 152 of CARin relation to parachuting at Barwon Heads aerodrome is referred back to the Civil Aviation Safety Authority for such further consideration as it thinks necessary or appropriate in accordance with law. 56 I will hear the parties as to costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway. Associate: Dated: 22 December 2004 Counsel for the Applicant: H J Langmead SC with H A Aizen Solicitor for the Applicant: Grundy Maitland & Co Lawyers Counsel for the Respondent: R R S Tracey QC with I Harvey Solicitor for the Respondent: Civil Aviation Safety Authority, Office of Legal Counsel Date of Hearing: 29 November 2004 Date of Judgment: 22 December 2004