R v Public Vehicles Licensing Appeal Tribunal

The proceeding before us is of a curious description. It consists of two orders nisi, one for mandamus and one for certiorari. It is not a writ of mandamus against an officer of the Commonwealth under s. 75 (v.) of the Constitution. It is a remedy directed to the Public Vehicles Licensing Appeal Tribunal of the State of Tasmania and it must rest upon s. 33 (1) (e) of the Judiciary Act 1903-1962 Cth if upon the facts of the case there is any ground within the Court's jurisdiction at all for issuing mandamus to that body. In the case of the certiorari, the subject of the other order nisi, it is enough to say that it seems to have been obtained by the prosecutor in mandamus as an alternative through a baseless fear that this Court might think that the substance of its case was correct but that its remedy was wrong because the Tribunal had done something which required a writ of certiorari to quash it. In fact we do not think that the substance of its case is correct. The odd manner in which the case presented itself led to much discussion but as we think that the prosecutor, i.e. Australian National Airways Pty. Ltd., could make out no case for any form of relief, we think it is better to turn at once to the substance of its complaint and neglect questions of remedy. To explain the case, however, even on this footing it is necessary to give some account of the situation created by State and Federal legislation. We must begin with the Traffic Act (16 Geo. V. No. 38) of the State of Tasmania as amended by a number of Acts including the Traffic Act (No. 31 of 1961) which makes extensive amendments. The Traffic Act is concerned primarily with surface vehicles but in the definition of public vehicle it included "aircraft": s. 3 (1), now repealed but for our purposes replaced by s. 14AB (3): s. 11 of No. 31 of 1961. Section 30A provides that for the purposes of the Act there shall be constituted a tribunal to be called the Public Vehicles Licensing Appeal Tribunal. That is the present respondent. The section provides that the tribunal shall consist of a police magistrate, who shall be Chairman, and two other persons appointed by the Governor and nominated by the Commissioner of Police and the Tasmanian Road Transport Association respectively. Section 30B provides among other things that any person who being the holder of any licence is aggrieved by the grant of any such licence to any other person may appeal therefrom to the tribunal as provided by this section. Section 30B (2) provides that an appeal under this section shall be instituted by notice of appeal in writing which shall state specifically but concisely the grounds of appeal. The remaining sub-sections of s. 30B deal with the time and place of hearing of the appeal and the procedure and empowers the Tribunal (unless it dismisses the appeal) to make such order as it thinks just and reasonable directing the Commission to issue or cancel any licence and so on. Finally, sub-s. (12) of s. 30B provides that every determination or order of the Tribunal on the hearing of any appeal under this section shall be final and without appeal.

Australian National Airways Pty. Ltd., carrying on business as Ansett-A.N.A., holds sixteen licences granted under the Traffic Act and the Transport Act 1938 as amended authorizing aircraft to be used on sixteen routes between various points in the State and other points in that State. These licences are granted under Pt III of the Traffic Act and may be issued by the Commission. They may be aircraft licences. Section 24 (1) III provides that no person shall drive or use or cause or permit to be driven or used as a public vehicle any vehicle in respect of which a licence is not in force (see Act No. 31 of 1961, s. 23 (c)). "Public vehicle" was defined by s. 3 to include aircraft: see too s. 15AB (4) (as inserted by Act No. 31, s. 11).

Trans-Australia Airlines which is established under the name of Australian National Airlines Commission by the Australian National Airlines Act 1945-1961 of the Commonwealth, but which it is convenient to refer to as T.A.A., made an application dated 12th June 1963 for an aircraft licence under the Traffic Act 1925 of Tasmania and the Transport Commission by a notice in the Gazette of 28th August 1963 notified a decision granting aircraft licences to operate on a route linking Launceston, Devonport, Wynyard and Hobart with Queenstown and Strahan. Thereupon Australian National Airways Pty. Ltd., that is Ansett-A.N.A., treating itself as aggrieved by the decision of the Transport Commission, caused an appeal to be instituted to the Public Vehicles Licensing Appeal Tribunal against the decision of the Transport Commission to grant to T.A.A. an aircraft licence to be operated on the aforesaid route linking Launceston etc. with Queenstown and Strahan.

There were seven grounds of appeal stated. The first of these is that T.A.A. cannot lawfully conduct and is not entitled to conduct airline services within the State of Tasmania and cannot lawfully operate and is not entitled to operate aircraft for the carriage of passengers or goods for reward or at all within the State of Tasmania (scil. in intra-State trade) and accordingly should not be granted aircraft licences under the Traffic Act 1925 as amended. The whole case before this Court turns on this ground but because Ansett-A.N.A. complains that the Tribunal ought to have gone on to decide the other grounds in its favour, it may not obscure the understanding of the position if it is here stated what these grounds were although to do so cannot aid in the understanding of this Court's decision. The second is that the appellant, Ansett-A.N.A., is the holder of aircraft licences under Pt III of the Traffic Act which licences authorize airline operations over all sectors of the route dealt with in the application, with certain exceptions. The third is that having regard to the licences held by the appellant the proposed service by the applicant was neither necessary nor desirable. The fourth is that the appellant, that is Ansett-A.N.A., had not to date applied for aircraft licences to operate on certain sectors only because of the inadequacy to date of landing facilities at Queenstown and Strahan. The fifth is that the application of T.A.A. did not set out details of the type of aircraft proposed to be operated or of the timetable or of the fares and did not have regard to the needs of the traffic. The sixth is that the appellant, that is Ansett-A.N.A., was better able to and qualified to provide services between the ports mentioned than T.A.A. The seventh and the last ground is that the appellant (i.e. Ansett-A.N.A.) being directly affiliated with other companies which operate hotels, road tours and other services in Tasmania, is particularly able to provide the services under consideration.

In notifying the appointment of a day for the hearing, the secretary of the Tribunal said that he was directed by the Chairman to suggest that as an initial step argument should be confined to ground (1) of the notice of appeal. On the hearing before the Tribunal counsel for Ansett-A.N.A. referred to the decision of this Court in Australian National Airways Pty. Ltd. v. The Commonwealth [1] and to s. 19A of the Australian National Airlines Act. He proceeded to contend that this section was not supported by the Constitution because the Tasmanian Parliament had not validly referred the matter to the Commonwealth and the Act by which it purported to do so, namely the Tasmanian Commonwealth Powers (Air Transport) Act No. 46 of 1952 was invalid because the power is conferred on a temporary basis for a limited period and not absolutely. In order to make it easier to follow the curious course this matter took it is desirable to set out the provisions referred to. Section 19A of the Australian National Airlines Act is as follows: "(1) Where the Parliament of any State has, prior to the commencement of section ten of the Australian National Airlines Act 1959, by any State Act, referred to the Parliament of the Commonwealth the matter of air transport, or the matter of the regulation of air transport, the Commission may, subject to this section, during the period of operation of that State Act, or during any extension of that period - (a) establish airline services for the transport for reward of passengers and goods within that State; and (b) maintain and operate airline services for any such transport, and shall have, in relation to any such service, the like powers as it has in relation to airline services specified in sub-section (1) of the last preceding section." (scil. s. 19 dealing with the general functions and duties of the Commission, T.A.A.). "(2) The Commission shall not - (a) establish any service which it could not lawfully establish but for this section unless the Premier of the State in which the service is to be established has notified the Prime Minister in writing that he consents to the establishment and operation of the service; or (b) continue the operation of any service in respect of which consent has been given under the last preceding paragraph after the Premier has notified the Prime Minister in writing that he withdraws his consent to the operation of that service. (3) The Commission shall, in respect of any service operated by it in pursuance of consent under the last preceding sub-section by the Premier of a State, pay to the State from time to time amounts equivalent to the licence fees (if any) which would be payable under the law of the State if the service were operated by a person other than the Commission."

The Commonwealth Powers (Air Transport) Act 1952 of Tasmania consists of four sections. The material part of s. 1 is sub-s. (2) which provides that the Act shall commence on a date to be fixed by proclamation. (In fact 2nd April 1959 was so fixed.) Sections 2, 3 and 4 are as follows: "2. The matter of air transport is referred to the Parliament of the Commonwealth for a period commencing on the date on which this Act commences and ending on the date fixed, pursuant to section three, as the date on which this Act shall cease to be in force, but no longer. 3. The Governor may at any time, by proclamation, fix a date on which this Act shall cease to be in force, and this Act shall cease to be in force accordingly on the date so fixed. 4. This Act shall be read and construed - (a) as intended to refer to the Parliament of the Commonwealth the matter of air transport for a period terminable as provided by this Act to the intent that if it is beyond the legislative power of the State to make the reference of that matter so terminable that matter shall be deemed to be not referred to the Parliament of the Commonwealth; and (b) so that after this Act, by virtue of a proclamation under section three, ceases to be in force, no law made by the Parliament of the Commonwealth with respect to the matter of air transport shall continue to have any force or effect by virtue of this Act or the reference made by this Act."

It was of course the natural contention of Ansett-A.N.A. that T.A.A. required a licence under the Tasmanian legislation but could not have one for the reasons disclosed in its notice of appeal to the Public Vehicles Licensing Appeal Tribunal. On the other hand, it was the natural contention of T.A.A. that it could operate without a licence notwithstanding that it had obtained one which of course it sought to retain. This curious situation was dealt with by the Tribunal in a judgment which in effect held that T.A.A. possessed under s. 19A of the Commonwealth Act authority without any State licence to establish and carry on the service and that therefore there was no foundation for the appeal. In effect the judgment said that the main argument of the appellant was that the State of Tasmania had not validly referred a matter, viz. air transport, to the Commonwealth under s. 51 (xxxvii.) of the Australian Constitution by reason of the reference to the Commonwealth being revocable (s. 3 of the Commonwealth Powers (Air Transport) Act 1952 of Tasmania) and it would follow that s. 19A of the Australian National Airlines Act 1945-1961 is invalid and for that reason failed to empower the Airlines Commission (T.A.A.) to operate Tasmanian intra-State air services during the period of the operation of any State Act which has referred the matter of air transport or the regulation of air transport to the Commonwealth. The conclusion of the Appeal Tribunal was as expressed in this paragraph of its reasons: "The Tribunal therefore is of the opinion that a matter may be referred by a State under s. 51 (xxxvii.) of the Commonwealth Constitution otherwise than irrevocably, that the Commonwealth Powers (Air Transport) Act 1952 is within the legislative power of the State of Tasmania and that s. 19A of the Australian National Airlines Act 1945-1959 is a valid exercise by the Commonwealth Parliament of its legislative powers." The Tribunal was satisfied, according to the reasons, "that none of the regulatory provisions, including licensing, of the Traffic Act regarding the use by the Commission (T.A.A.) of aircraft as public vehicles in this State are applicable in the case of aircraft operated by the Commission (T.A.A.) under the powers conferred on it by s. 19A." The reasons concluded: "In the view of the Tribunal the appeal should be and is struck out." This meant that the tribunal disposed of the appeal by deciding that a licence for T.A.A. was unnecessary having regard to the operation of s. 19A of the Australian National Airlines Act 1945-1961. It is to be noticed that s. 19A (1) according to its terms operates only where the Parliament of a State has by a State Act referred to the Parliament of the Commonwealth the matter of air transport or the matter of the regulation of air transport. It would be useless therefore to say that that was intra vires because the operation of the external affairs power would support a provision not so justified, assuming that to be so. Three points are taken against the operation of s. 19A to relieve T.A.A. of the necessity of obtaining a licence under the Traffic Act 1925 as amended up to and including the Traffic Act (No. 31 of 1961). The material provision of the enactment thus amended is that no person shall drive or use or cause or permit to be driven or used as a public vehicle any vehicle in respect of which a licence is not in force: s. 24 (1) III as amended. The first is that, assuming that s. 19A of the Australian National Airlines Act 1945-1961 has an operation, it does no more than confer a capacity upon the Commission (that is T.A.A.) so that it is not ultra vires for it to operate an airline service within Tasmania: the section does not empower the Commission to do so. The second is that as a matter of construction s. 19A (1) does not purport to enable or authorize T.A.A. to use a public vehicle, which by definition includes an aircraft, except subject to State law. Thirdly the appellant relied on a contention that s. 19A was ultra vires because the Commonwealth possessed legislative power over no subject matter which would authorize it and in particular the operation of s. 51 (xxxvii.) of the Constitution upon the subject-matter referred by the Commonwealth Powers (Air Transport) Act 1952 did not provide such a subject-matter. The first two of these three contentions of course are concerned with the operation of s. 109 of the Constitution to displace the application to or operation upon T.A.A. of s. 24 (1) III of the Traffic Act 1925-1961 of Tasmania. They do not, however, depend on the meaning or interpretation of s. 109 but upon the meaning and effect of s. 19A of the Australian National Airlines Act 1945-1961. Section 19A is expressed in language which when the required conditions are fulfilled is not inappropriate to authorize the Commission (T.A.A.) to establish airline services for the transport for reward of passengers or goods within that State and to maintain and operate airline services for any such transport. There is no reason for treating the provision as concerned only with what shall be within the scope of the Commission's corporate capacity, as concerned only with defining what shall be a juristic act of the Commission. The words used do not read as if they were simply facultative, as meaning to do no more than confer a capacity upon a statutory corporation so that it would be within its corporate powers to do the thing thereby specified. Indeed sub-s. (1) goes on to say: "and shall have, in relation to any such service, the like powers as it has in relation to airline services specified in sub-s. (1)" of s. 19. As has already been said s. 19 describes the general functions and duties of the Commission and is enacted under the commerce power as well in part perhaps as under the power over postal services. It should be pointed out that under sub-s. (2) of s. 19A a notification by the Premier of the State of Tasmania to the Prime Minister of the former's consent to the establishment of the service is necessary to enable the Commission lawfully to establish it. Under sub-s. (2) (b) the continuance of the consent is necessary for the continuance of the service. So that if the Premier notifies the withdrawal of his consent to the operation of the service the Commission shall not continue it. Why then should s. 19A be construed as enabling T.A.A. to establish, and to maintain and operate, airline services of the kind described but only subject to the licence or permission of State law? The answer must be that neither in the text nor the context nor in any matter of implication or inference can any reason for such a construction be found. But if it were correct that s. 19A should as a matter of interpretation be treated as facultative it remains nevertheless difficult to see why (under s. 109) T.A.A. should be able only to exercise its capacity under or subject to s. 24 sub-s. (1) III and sub-s. (13) of the State law (Traffic Act 1925-1961). The Tribunal however took the view, so the counsel of Ansett-A.N.A. said, that T.A.A. could lawfully operate in Tasmania and in disregard of Tasmanian law, without a licence under Tasmanian law; that s. 19A produced an inconsistency with that law and the appeal should therefore be struck out. Since T.A.A. did not need a State licence the appeal against the issue of such a (superfluous) licence should be treated as outside the purview of the Tribunal's functions. Unless therefore s. 19A of the Australian National Airlines Act 1945-1961 of the Commonwealth is inoperative or ineffectual, as by its third contention Ansett-A.N.A. maintains, it would seem that the Tribunal correctly held that T.A.A. could carry on its services on the routes within the confines of Tasmania without a licence under the Traffic Act 1925 as amended and as affected by the Transport Act 1938 and the subsequent amendments of that Act and by the Traffic Act 1961. And there is no reason to think that the Tribunal was wrong in treating that conclusion as disposing of the purported appeal before it. It has already been pointed out that s. 19A must of course, having regard to its terms, be considered as depending on s. 51 (xxxvii.) of the Commonwealth Constitution. Section 51 (xxxvii.) provides that the Parliament (of the Commonwealth) shall, subject to the Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred or which afterwards adopt the law. The "matter" in respect of which s. 19A was enacted seems undeniably to be that set out or described in the Tasmanian Commonwealth Powers (Air Transport) Act 1952 (No. 46 of 1952). Unless that statute fails to achieve its intended purpose s. 19A must, as would appear, constitute a valid law of the Commonwealth. A number of reasons, however, have been assigned on behalf of Ansett-A.N.A. for saying that the Tasmanian Act (No. 46 of 1952) cannot fulfil its purpose. Some of these provide alternative grounds for the conclusion and are inconsistent; others are cumulative. It will be convenient to deal with the grounds in a different order from that in which they were presented in argument.

One contention which can be disposed of at once is that under s. 51 (xxxvii.) the power to be referred by a State or States must be simply a power to enact a law in the form of a statute which is described and defined just as an Act of Parliament would be. This argument is apparently derived from the words at the end of par. (xxxvii.) "which afterwards adopt the law". From that it is inferred that the matter referred to the Parliament of the Commonwealth by the Parliament of a State must be the law. This seems to be an entirely erroneous inference without foundation. The law referred to by the last word goes back to the initial words of s. 51 - "The Parliament shall have power to make laws for the peace, order and good government of the Commonwealth" and refers to the law made by the Parliament of the Commonwealth in pursuance of a reference of a matter. It seems absurd to suppose that the only matter that could be referred was the conversion of a specific bill for a law into a law.

The chief argument, however, relied on on behalf of Ansett-A.N.A. is that par. (xxxvii.) contemplates the reference by the Parliament or Parliaments of a State or States of a matter or matters once for all and that the power given by s. 3 of the State Act (No. 46 of 1952) to the Governor of Tasmania by proclamation to fix a date on which the State Act shall cease to be in force is incompatible with a reference under par. (xxxvii.) of s. 51 of the Constitution. Section 4 of the State Act which directs that it shall be read and construed as intended to refer to the Parliament of the Commonwealth the matter of air transport for a period terminable as provided in the Act and so on makes it clear of course that it goes to the root of the intention of s. 2. It is said therefore that there is no reference which fills the description of par. (xxxvii.) when properly understood. It may be remarked that it is not a question of the validity of Act No. 46 of 1952 of Tasmania but whether it answers the description contained in par. (xxxvii.) of s. 51 of the Constitution of the Commonwealth. If it does not, then it would doubtless be correct to say that s. 19A of the Australian National Airlines Act 1945-1961 is ultra vires. A great deal of discussion has taken place as to the true meaning and operation of par. (xxxvii.) and of course the purported reference by the Parliament of a State to the Parliament of the Commonwealth, as a matter, of something which could not fall within the description of the paragraph, however it might operate as a State law, could not operate to increase the powers of the Federal Parliament. The simplest approach, however, to the problem is simply to read the paragraph and to apply it without making implications or imposing limitations which are not found in the express words. We must remember that it is part of the Constitution and go back to the general counsel to remember that it is a constitution we are construing and it should be construed with all the generality which the words used admit. See per O'Connor J. in the Jumbunna Case [1] . So reading it, why should there be found in the words "matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States" any implications concerning the period of reference? It is plain enough that the Parliament of the State must express its will and it must express its will by enactment. How long the enactment is to remain in force as a reference may be expressed in the enactment. It none the less refers the matter. Indeed the matter itself may involve some limitation of time or be defined in terms which involve a limitation of time. In the argument before us there seemed to be an assumption that to include the Tasmanian Act No. 46 of 1952 within par. (xxxvii.) there must be implications in the words the paragraph employs. But this seems to be an error. There is no reason to suppose that the words "matters referred" cannot cover matters referred for a time which is specified or which may depend on a future event even if that event involves the will of the State Governor-in-Council and consists in the fixing of a date by proclamation. The question which was discussed at length before us as to whether when the Parliament of a State has made a reference it may repeal the reference does not directly arise in this case. It forms only a subsidiary matter which if decided might throw light on the whole ambit or operation of the paragraph. We do not therefore discuss it or express any final opinion upon it. We think that the Tasmanian Act as framed is fairly within the paragraph and does refer a matter. But it must be remembered that the paragraph is concerned with the reference by the Parliament or Parliaments of a State or States. The will of a Parliament is expressed in a statute or Act of Parliament and it is the general conception of English law that what Parliament may enact it may repeal. However, for present purposes it is enough to say that neither the words "matters referred" nor any other part of par. (xxxvii.) provide any ground for saying that the Commonwealth Powers (Air Transport) Act (No. 46 of 1952) of Tasmania failed to effect a reference pursuant to par. (xxxvii.) of s. 51 of the Commonwealth Constitution.

There is one small matter that may involve a little confusion which should be cleared away. Section 19A as it was originally enacted by No. 90 of 1947 had not at that date the support of the Commonwealth Powers (Air Transport) Act (No. 46 of 1952) of Tasmania which was of course not enacted until 1952 and actually did not commence until 2nd April 1959 pursuant to sub-s. (2) of s. 1. But by the Australian National Airlines Act No. 3 of 1959, s. 19A was amended in a very material respect. The opening words of s. 19A as originally introduced by s. 5 of Act No. 90 of 1947 were: "Where the Parliament of any State has, prior to the commencement of this section, by any State Act". For these were substituted by Act No. 3 of 1959 the words "Where the Parliament of any State has, prior to the commencement of section ten of the Australian National Airlines Act 1959, by any State Act, referred to the Parliament". The commencement of s. 10 of the Australian National Airlines Act which made this amendment was fixed by sub-s. (2) of s. 10 of that Act for our present purposes as follows. Sub-section (2) provides that "On and after the date of commencement of this section, the provisions of the Principal Act, as amended by the provisions of this Act that come into operation on that date, in their application to or in relation to airline services referred to in section nineteen A of that Act, as so amended, shall be deemed to have effect by virtue of this Act". This Act, viz. Australian National Airlines Act No. 3 of 1959, came into operation on the date when it received the Royal assent, see s. 2 (1), which was 21st April 1959. Thus the Tasmanian Act preceded the date when the Commonwealth law came into effect as law which was indeed the date when its enactment was completed by the Royal assent.