PRACTICE AND PROCEDURE - respondent cancelled applicant's air operator's certificate - decision subject to automatic stay - respondent published pending cancellation on website - whether Tribunal has power to make order restraining respondent from publishing pending cancellation on website - Tribunal does not have power to make order

Cape York Airlines Pty Ltd is the applicant in these proceedings. It held an Air Operator's Certificate ("AOC") that permitted it to conduct regular public transport, charter and other operations in a number of small aircraft. The Civil Aviation Safety Authority ("CASA") notified the applicant by letter dated 16 June 2004 that the respondent was satisfied grounds existed for cancelling the AOC. The applicant promptly applied to the Tribunal for a review of the decision and the operation of the decision was automatically stayed pursuant to s 31A of the Civil Aviation Act 1988.

CASA has a policy of announcing cancellations and suspensions on its website. The parties agreed CASA is not required to do so by the statute; the publication occurs pursuant to an internal policy. The applicant says CASA should not post a notice of the (stayed) decision to cancel the AOC before the matter has been determined by the Tribunal. The respondent has not agreed to refrain from doing so. The applicant says its business will be substantially damaged by the publication. It says the Tribunal has the power under s 41(2) of the Administrative Appeals Tribunal Act 1975 to effectively restrain the respondent from posting the notice.

A telephone directions hearing was held late in the afternoon on 24 June 2004. Mr Langmead SC appeared for the applicant. Mr Anastasi appeared for the respondent. The parties focused on whether or not the Tribunal had the power to make the orders sought. The hearing did not consider an alternative course of applying for an order s 35 of the Administrative Appeals Tribunal Act 1975. That question has been left for another day.

Section 41(2) of the Administrative Appeals Tribunal Act 1975 provides:

The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding ), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

The decision in this case has already been stayed pursuant to s 31A of the Civil Aviation Act 1988. The stay is imposed automatically as soon as the decision is made for a period of five days (s 31A(4)) and continues for up to 90 days without the need to obtain further orders if an application is made for review by the Tribunal within the initial five day stay period: s 31A(5).

6.

The stay power is set out in s 31A(3). The sub-section says:

"If this section applies to a decision, the operation of the decision is stayed by force of this section."

The terse words in s 31A(3) can be contrasted with the more elaborate wording of s 41(2) of the Administrative Appeals Tribunal Act 1975. The applicant says the difference in language is not an accident. It says the scope of the Tribunal's powers under s 41(2) may be wider than s 31A of the Civil Aviation Act 1988.

Mr Langmead, for the applicant, put the argument like this. He noted s 41(2) of the Administrative Appeals Tribunal Act 1975 empowered the Tribunal to make orders staying the decision or otherwise affecting the operation or implementation of the decision. He focused on the word "implementation". He said that publication of a decision was one of a chain of events triggered by the decision, and was therefore part of the implementation of that decision. Implementation of the decision was different to its operation. By including both "operation" and "implementation" in the sub-section in addition to expressly providing for a bare power to stay, Mr Langmead said the parliament intended to equip the Tribunal with the power to restrain the respondent from taking the steps that would otherwise be set in train by the decision.

Mr Langmead added that the effect of the stay (whether ordered by the Tribunal, or pursuant to the automatic stay provision in s 31A) was to permit the applicant to continue its operations as if its licence had not been cancelled. It was therefore inaccurate for the respondent to suggest the licence had been cancelled, he argued. It was merely subject to a cancellation decision that had no effect unless and until certain events occurred.

I did not understand Mr Langmead to argue that publication was effectively prohibited on the basis that the decision to which the notice on the website related had been stayed. In other words, he did not appear to suggest that publication was already effectively restrained by virtue of the automatic stay under s 31A of the Civil Aviation Act 1988. He appeared to accept that a further order from the Tribunal under s 41(2) of the Administrative Appeals Tribunal Act 1975 would be required to achieve that result.

Both parties agreed they were unaware of any other cases where the Tribunal was asked to make orders like those sought here. Mr Anastasi, for CASA, says that is because the Tribunal cannot make the order. He said the decision to cancel the AOC has already been stayed in the sense that the applicant can keep flying as before. I understood him to argue the decision to post an announcement of the cancellation on the website was merely incidental to the cancellation decision. CASA was not required by law to post the notice. He said the decision to post an announcement on the website was effectively the product of a separate decision - a decision over the content of the website, not a decision to cancel - that was not a reviewable decision that might be stayed under s 41(2). In any event, it was not "the decision to which the relevant proceeding relates". The respondent adds that posting material on the website does not form part of the implementation of that decision.

The power to order a stay under s 41(2) has been considered in a number of cases. Tamberlin J observed in Shi v Migration Institute of Australia Ltd [2003] FCA 1304 (at para. 30) that the power "must be given a broad interpretation". In that case, the Court was considering an appeal from the Tribunal's refusal to stay the respondent's decision not to renew the applicant's registration as a migration agent. After considering the Tribunal's earlier decision in Re Alexander and Migration Agents Registration Board (1995) 40 ALD 99, his Honour said (at para. 28):

"...the effect of the decision not to renew in circumstances where a person is taken to have been registered, is to break the "continuum" by a reviewable decision. It is evident that if a decision favourable to an applicant is made by the AAT in relation to the application to renew, then the agent in this case will have been wrongfully deprived of the opportunity to earn his livelihood from that time up to the time of the favourable determination. There may also be damage to his practice and reputation. There is no provision for recovery of this loss or for any disruption to the practice, or loss of reputation or goodwill. A favourable decision to the applicant by the AAT would also mean that the applicant had been wrongfully refused registration and these are important considerations"

His Honour's reference to a "continuum" is a reference to the requirement in the statute that the power to stay should only be exercised in order to secure the effectiveness of a hearing. I note his Honour considered the effect on the applicant's reputation and livelihood if the decision were carried into operation.

In this case, the applicant says its reputation and livelihood will be adversely and irreparably affected prior to the hearing if notice of the stayed decision were to be published. Although I was not referred specifically to the decision in Shi, I assume the applicant would contend orders restraining publication to avoid the bad publicity would be consistent with the "broad interpretation" of the sub-section urged by Tamberlin J.

For present purposes, it is unnecessary for me to determine whether I would exercise the discretion to make an order in the terms the applicant seeks. I merely need to decide whether I have the power to do so.

I do not think the Tribunal's power in s 41(2) extends as far as the applicant contends. It is true the respondent's decision to publish is triggered by the cancellation decision, which is subject to a stay. But the decision to publish is not part of the decision under review. It is properly characterised as being incidental or collateral to the stayed decision, rather than as an act occurring as part of the implementation of that earlier decision. Publication of the notice is not integrally and necessarily connected with the decision to cancel; if it were, an order might be made. The implementation of the decision in question involves taking steps to prevent the applicant from flying. Publishing notice of the decision on the website does not do that, even if it may have practical commercial implications for the applicant's business.

In making this decision, I am conscious of the Tribunal's status. It is not a court, and its orders are not enforceable in the way that court orders may be enforced. Were I to make an order in the terms sought by the applicant, I would effectively be giving an injunction. That would be to trespass on the territory of the Federal Court.

The Tribunal does not have the power to make the orders sought.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe

Signed: .....................................................................................

Associate: Thomas Ritchie

Date/s of Hearing: 24 June 2004

Date of Decision: 28 June 2004

The applicant was represented by Mr Wollerman and Mr Langmead, SC

The respondent was represented by Mr Anastasti