Roberts, M.J. v. The Secretary to the Department of Aviation & Anor [1985] FCA 89

Federal Court of Australia|1985-03-14|Before: Spender JJ, Mr P

ADMINISTRATIVE LAW - Judicial review - Suspension of commercial prlot licence pursuant to Air Navigation Regulations - Whether enactment of Administrative Appeals Tribunal Act 1975 operated to aiunvalidate requlaticn authorising suspension - Whetner decision to suspend vitiated pv previous consent to prosecution for offences against vregulations - Whether vending criminal oroceedings precluded proper cypartunity being afforded to shay Cause AVALNST suspens ron of Licence.

Administrative Decision «iudicial Review) Ast 1977. s.

Administrative Aopeals Tribunal Act 1975, 5.26 and Part III of

MICUAS JOHN ROBERTS v. THE SECRETARY TO THE DEPARTMENT OF AVIATION and RICHARD HUGH JOHN THOMPSON

NEW SOUTH WALES DISTRICT REGISTRY No. NSW G 303 of 1984

ON APPEAL FROM_A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: THE SECRETARY TO THE DEPARTMENT OF AVIATION and RICHARD HUGH JOHN

JUDGES MAKING ORDER : Morling, Neaves and Spender Jd DATE OF ORDER 3 14 March 1985 WHERE MADE 3 Svdney THE CGURT ORDERS THAT:

NEW SOUTH WALES DISTRICT REGISTRY No. NSW G 303 of 1984

QN APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN : MICHAEL JOHN ROBERTS Appellant AND: THE SECRETARY TO THE

DEPARTMENT OF AVIATION and RICHARD HUGH JOHN THOMPSON

CORAM: Morling, Neaves and Spender JJ. DATE: 14 March 1985

Michael John Roberts ("the appellant") has appealed from a decision of the Court constituted by a single judge

dismissing an application under the Administrative Decisions

(Judicial Review) Act 1977. The application sought an order of review in respect of a decision made on 2 December 1983 under regulation 258 of the Air Navigation Regulations made under the

Air Navigation Act 1920 suspending the appellant''s commercial

pilot licence for the period from 29 November 1983 to 29

In the proceedings frcm which the appeal 1s brought and in the notice of appeai the respondent was "The Secretary to the Department of Aviation". ft 1s clear, however, that the holder of that office was not the decision-maker. The relevant decision was made by Richard Hugh John Thompson, tne Regional Director of the New South Wales Region of the Department of Aviation, acting under a delegation to him by the Secretary to that department pursuant to regulation 9 of the Air Naviaation Requlations. In those circumstances the Court gave leave «to

the appellant to join Mr Thompson as ai respondent to the

Q 7 August 1982 the appellant was the holder of a commercial pilot licence issued under the Arr Navigation Regulations (see regulations 50(2) and Si(1)(111)). That licence would, pursuant ta cequlation 53(1)(c). remain in force until 31 October 1982, being one vear after the date of its

Pollowing the crash near Adaminaby. New South Wales on 7 August 1982 of a helicopter of which the apprellant was the pilot. Mr F.J. Adams, a delegate of the Secretary to the Department of Aviation, on 10 August 1982 pursuant to regulation 257 of the Air Navigation Regulations suspended the appellant's licence for the purpose of an investigation under

the requlations. That suspension was expressed to cease "upon

the expiration of the investigation or at the expiration of

twenty-eight days from and inciudina the date of this

By letter dated 3 September 1982 Mr P.S. Langford, another delegate of the Secretary to the Department of

sub-requlation 258(?) of the Air Navigation Regulations of the facts and circumstances that in his opinion warranted consideration being given to the variation or suspension of the

appellant s licence and allowed the appeliant 28 davs within

which to show cause why the licence should not be varied or susvended under that regulation. That pericd of 28 days was. by letter to the appellant dated 11 October 1982 signed by Mr Langford, extended "until 3 March 1983 or until tne results of the New South Wales Police proceedings against vou are known, whichever is the earlier". The proceedings referred to were

comm1lttal proceedings for manslaughter arising from the death

of three passengers in the helicopter crash to which reference

By letter dated 28 April 1983 the appellant asked the Regional Director of the New South Wales Region of the

Department of Aviation for an assurance that any answer he

might make to the letter dated 3 September 1982 would not be used "in any further legal proceedings that may be contemplated by the Department". By letter dated 27 May 1983 the appellant was informed that such an assurance would not be aiven. The appellant was also informed that favourable consideration would be given to a request that the period within which to show cause be extended until the cencliusion of the vroceedings which

were to be instituted against nim for contraventions of the Air

On 13 July 1983 the appellant's licence was renewed

until 31 October 1983 but was iummediatelv suspended. The appellant was informed that the renewed licence had been suspended under recqulation 257 Of the Air Navigation

Regulations for the purposes of an investigation under that

reguiation. The suspension was expressed to cease upon the completion of the investigation or at the expiration of 28 davs

On 15 July 1983 proceedings were instituted charging the appellant with offences against regulations 44(1), 124(1). 124(2) and 243 of the Air Navigation Regulations. The unstitution of those proceedings had been consented to in writing by Collin William Freeland, the Secretary to the Department of Aviation, on 1 June 1983 (see sub-regulation

317(1)). It was apparently intended that the offences should

be prosecuted upon indictment (see sub-regulation 312(5)).

By letcer dated 28 July 1983 Me Thompson who, as has already been mentioned, was the Reqionai Director of the New South Wales Region of the Department of Aviation and a delegate of tne Secretary to that department, gave notice to the appellant pursuant to sub-requlation 258(3) of the Air Navigation Regulations of the facts and circumstances that in his opinion warranted consideration being given to the variation or suspension of the renewed licence. The facts and circumstances referred to were 1dentical to tnose set out in

the letter dated 3 September 1982 voreviously mentioned. The

appellant was allowed 28 days from the date of the letter to

show cause why his licence should not be varied or suspended.

By letter dated 2 September 1983 to the appellant's solicitors Mr Thompson conficmed that the period of time within which to show caus? why the appellant's licence should not be varied or susvended was extended until the conclusion of the proceedings referred to in the letter dated 27 May 1983 which the writer said he understood would be some time in December

On 31 October 1983 the appellant's licence was again cenewed to remain in force from 1 November 1983 until 31

On 10 November 1983 the appellant's solicitors wrote

to the Secretary to the Department of Aviation stating that

they were instructed by the appellant "to answer vour letter to

him dated 28 July, 1983, notwithstandina your extension of time

granted by letter dated 2 September, 1983". Reasons were then

advanced why the Secretary had no power to suspend or cancel

appellant and -¢zaned by Mr Thompson as a dadeleaate of

Secretary to the Department of Aviation, the avpelliant

"I vefer to our letter of 13 Julv 1983, in which vou were advised of the suspension of your Commercial Pilot Licence Number 036090. for the purpose of an investigation. The subject of the investigation was the accident to Bell 206 helicopter, VH-TXR. of which you were pilot-in-command, near Adaminabv, New South Wales, on 7 August 1982.

You were subsequently notified on 9 Auaust 1993 Csicl that facts and circumstances of the accident are such that, in my opinion, thev warrant consideration being aqiven to the variation or suspension of yvour Commercial Pilot Licence Number 936090, under Requlation 258 of the Air Navigation Regulations. You were invited to show cause why such action should not be taken and I have studied your solicitor's reply of 10 November 1983.

My delegated responsibilities under the Air Navigation Act and Requlations. require me to take appropriate administrative action regarding your

pilot licence, independent of any action which may be taken under the judicial system in order that

the required safety standards for air navigation are preserved. Following a review of all the facts, including your solicitor's reply, I have decided to suspend your licence in pursuance of Regulation 258(1)(a) and (c) of the Air Navigation

Regulations for the period from and including 29 November 1983 to and including 29 November 1985. I am satisfied that the following grounds exist for this suspension:

(a) that you nave contravened, or failed to comply with, provisions of these Regulations; and

(b) you have failed in your duty with respect to matters affectina the safe operation of an aircraft.

Full particulars of the facts and circumstances that constitute the grounds for the suspension of your licence are ag follows:

{a) On 7 August 1982 as oilot-in-command of Bell 206 helicopter VH-TXR, you permitted maintenance to be carried out on the aircraft by the fitting of a

wooden platform between the landing skids by a person who was not, or was

not emploved tor that purpose by, an appropriate person in contravention of Airy Navigation Requlation 44(1).

VH-TXR, of which vou were pilot-in-command, carried a person on the undercarriage of, and wooden

platform attached beneath, the aircraft in contravention of Air Navigation Regulation 243.

attached to, Bell 206 helicopter VH-TXR on 7 August 1982, you flew the aircraft

zn such circumstances as to cause avoidable danger to that person un contravention of Alr Naviaation

These breaches of the Regulations, whether or not they were contributory factors in the accident at Adaminaby on 7 August 1982, were committed prior to

that accident and are the basis for this administrative action. It was only as a result of the accident at Adaminaby on 7 August 1982 that these breaches of the Regulations, were brought to my attention.

Your attention is drawn to your right of appeal against my decision. The appeal provisicns of the Administrative Appeals Tribunal Act 1975 supersede the rights of appeal granted by Requlaticn 259 of the Air Navigation Regulations to a person agarieved by a decision of the Secretary to susvend a licence. An application for review must be lodged with the Tribunal within 28 davs of the serving of a notice of suspension.

You are requested to forthwith forward your Commercial Pilot Licence to me foc a notice of

suspension ta be endorsed in 1t under the provisions of Reaqulation 267."

It was in respect of the decision conveyed to the appellant by

that ietter that an order of review under the Administrative

On 14 December 1983 the apveliant was committed for trial for offences against reaulations 44(1), 124(1) and 243 of

On 23 December 1983 the appellant applied to the Administrative Appeals Tribunal pursuant to sub-section 29(1)

of the Administrative Appeals Tribunal Act 1975 for the review

of the decision conveyed to the appellant by the letter dated 2

December 1983. That application has been adjourned generally.

Administrative Decisions (Judicial Review) Act 1977 on 9 August

1984, The learned primary judge rejected a submission on

behalf of the appellant that there had been a denial of natural

justice in the making of the decision of 2 December 1983 by

reason of the circumstance that the Secretary to the Department of Aviation both suspended the apvoellant's licence under requlations 257 and 258 of the Air Navigation Requlations and

consented to the prosecution of the appellant for breaches of

those regulations arising out of the same incident as gave rise to the suspension of his licence. The learned judge also

rejected a submission on behalf of the appellant that, because

showing cause would involve self-incrimination, the offer to show cause made to him was illusory and there was a breach of the audi alteram partem rule of natural justice. His Honour also rejected a supmission that regulation 258 of the Air Navigation Regulations was ultra vires, holding that sub-section 28(1) of the Air Navigation Act 1920 (which in terms requires that a regulation providing for the suspension

of a licence also include a right of appeal to A particular

court or to such one of two or more courts as the licensee

selects) had been impliedly amended by section 26 of the

Administrative Appeals Tribunai Act 1975. The application was

From that decision the present appeal is brought. The qrounds of appeal, as set out in paragraphs 2 - 5 inclusive of

principles of natural justice did not apply to the Air Navigation Act 1920 and the Air Navigation Requlations.

His Honour erred in law in holding that there was no breach of the audi alteram partem rule.

His Honour erred in law in finding that Section 26(1) and Schedule 1 of the Administrative Appeals Tribunal Act impliedlv amended Section 28 of the Alr Navigation Act 1920."

Before us it was submitted that regulation 258 of the Air Navigation Requlations was invalid. To understand the argument 1¢ 1s necessary to refer to certain provisions of the

Air Navigation Act 1920 and the Air Navigation Requlations.

The Air Navigation Act 1960 (Act No. 39 of 1960 which

came into operation on 19 August 1960) inserted into the Air

Navigation Act 1920 section 26. Sub-section 26(1) conferred on

the Governor-General a wide power to make requlations. Sub-section 26(2) provided that. without limiting the qenerality of the preceding provisions of the section, the regulations that might be made under the powers conferred by

sub-section 26(1) included regulations for or in relation to,

unter alia, requiring persons performing specified functions in relation to the operation or maintenance of aircraft to be the

holders of licences or certificates of specified kinds, and providing for the grant, cancellation, suspension or variation

of such licences and certificates (paraaqraph (b) of sub-section

26(2)). The Air Navigation Act 1960 also inserted section 28

into the Principal Act. Sub-sections (1), (2), (3) and (6) of

"28.-{1.) Where the requlations include requirements in oursuance of paragraph (b) of sub-section (2.) of section twenty-six of this

Act. the regulations shall, subject to the Constitution, alsa include provisions under which a person aagqrieved by a refusal to grant, or by a cancellation, suspension or variation of, a licence or certificate of a kind referred to in those requirements nas a friaht of appeal to a particular court, or has a right of appeal

(a) shail be taken to prevent the making of requiations for or in relation to the conferring on any administrative authoritv, including a board of review

constituted under the regulations, of powers and functions. to be exercised by

way of appeal or review, in respect of matters referred to in that sub-section;

(b) shall be taken to require the regulations to give to a person who has elected to have a matter dealt with by an administrative authoritv having such powers and functions a right to appeal in the same matter to a court; or

(c) applies in relation to a temporary suspension for the purposes of an examination or a suspension for a period not exceeding twenty-eight days pending completion of an investigation.

(3) The regulations may make provision for and in relation to all or any of the following:

(a) aumvesting the Supreme Courts of the States with federal jurisdiction;

(b) conferring jurisdiction upon the Supreme Courts of the Territories of the Commonwealth; and

for the purposes of requlations made in pursuance of the preceding provisions of this section.

(6) In this section 'court' means a federal court, the Supreme Court of a State or the Supreme Court of a Territory of the Commonwealth."

Sections 26 and 28 of the Air Navigation Act 1920 have been

subsequently amended in a number of respects but none of those

By Statutory Rules 1960, No. 99 the Air Navigaticn Reaqulations were amended by inserting therein a substituted Part XV headed "Refusal to Grant, and Suspension and Cancellation of, Licences and Certificates" and consisting of regulations 254 - 269 inclusive. Amendments have since been made to a number ot those regulations (both before and after 1 July 1976 - a date the siqnificance of which will later appear) but for the purposes of considering the submissions made on this appeal it 1s sufficient to refer to the requlations in the form which they at present assume and to regard them as having

"257.(1) Where the Secretary has reason to think that there may exist facts or circumstances that would justify the variation, suspension or cancellation of a licence or certificate on a ground specified in the next succeeding requlation, the Secretary may, by notice in writing served on the holder of the licence or certificate. suspend the licence or certificate for the purpose of an investigation under this regulation.

(2) Where the Secretary suspends a licence or certificate in pursuance of the last preceding sub-requlation, he shall forthwith investigate the matter, and the suspension shall cease upon the completion of the investigation or at the expiration of twenty-eight days from and including the date on which the susvension took effect, whichever is the earlier, but without wrejyudice to the powers of the Secretary under the next succeeding regulation.

(a) the Secretarv, upon the completion of an investigation under this regulation, gives to the holder of the licence or

certificate a notice under sub-regulation 258(3): and

(b) the suspension of the licence or certificate under this regulation had

not ceased before the completion of the investigation,

the licence or certificate shall remain suspended during the time specified by the Secretary in that notice as the time within which the holder of the licence or certificate may show cause why the licence or certificate should not be varied, suspended or cancelled under regulation 258.

258.(1) Subject to this requlation, the Secretary may, by notice in writing served on the holder of a licence or certificate, vary, suspend or mancel the licence or certificate where he 15 satisfied that one or more of the following grounds exists, namely:

(a) that tne holder of the licence or certificate has contravened, or failed to comply with, a wrovision of the Act or these Regulations, including these Regulations as in force by virtue of a law of a State;

(b) that the holder of the licence or certificate fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these Regulations in relation to the obtaining ar holding of such a licence or certificate;

(c) that the holder of the licence or certificate has failed in his duty with vespect to any matter affecting the safe or efficient navigation or operation of an alrcrafit;

{d) that the holder of the licence or certificate is not afit and proper person to have the responsibilities and exercise and perform tne functions and duties of a holder of such a licence or certificate; or

(e) that the holder of the licence or certificate has contravened. or failed to comply with, a direction or instruction with respect toa matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that 1s

(2) A notice under the last preceding sub-requlation shall contain full particulars of the facts or circumstances that constituted the ground or grounds for the variation. suspension or cancellation of the licence or certificate, as the case may be.

(3) Before taking action under this regulation to vary, suspend or cancel a licence or certificate,

(a) give notice, in writing, to the holder of the licence or certificate of the facts and circumstances that, in the opinion of the Secretary, warrant consideration being given to the variation, suspension or cancellation of the licence or certificate under this regulation; and

(b) allow the holder of the licence or certificate to show cause, within such time as the Secretary specifies in that notice, why the licence or certificate should not be varied, suspended or cancelled under this regulation.

(4) The time specified by the Secretary in the notice under sub-regulation (3) as the time within which the holder of the licence or certificate may show cause why the licence or certificate should not be varied, suspended or cancelled under this

regulation shall be a time that is reasonable in all of the circumstances of the particular case.

(a) a refusal of the Secretary to grant a licence or certificate (not being a cefusal in pursuance of sub-requlation

(b) the variation or cancellation of a licence or certificate, or the

suspension of a licence or certificate otherwise than under regulation 256 or

{d) to appeal to a specified court against the decision of the Secretary.

(2) An election under the last preceding sub-regulation shall -

(a) be ain writing, signed by the person making the election: and

(b) be lodged with the Secretary within fourteen days after service on him of notification of the decision of the Secretary.

(3) Where a person elects under this requlation to have the'matter submitted for review to a board of review. the Secretary shall request the Minister to take the necessary steps for constitution of a board of review and the Minister shall take those

(4) An election to have the matter submitted for review to a board of review shall be accompanied by a deposit of Sixty dollars.

(5) The court to be specified in an election by a person under this regulation shall be selected by him from among the following Courts:

(a) the Commonwealth Industrial Court; (b) the Supreme Court of the State or

Territory of the Commonwealth in which he is residing for the time being; or

(c) a1f that person and the Secretary have agreed in writing that the Supreme Court of another State or Territory of the Commonwealth would be a convenient Court, that Supreme Court."

For the purpose of those regulations a "licence" includes a commercial vilot licence, being a licence under Part V oof the requlations (see the definition of "licence" in regulation 254). The references to "the Secretary" may, since the creation of the office, be taken as references to the

Secretary to the Department of Aviation. Before that office

was created the references were to the Secretary to the

Other regulations in Part XV provide for the constitution and powers of boards of review (regulations 260 - 263) and for the jurisdiction of the courts to hear and determine the appeals for which regulation 259 provides

"265. A statement or disclosure made by a witness to a court or to a board of review under this Part is not admissible in evidence against him an civil or criminal proceedings 1n a court except in a prosecution for giving false testimony in proceedings under this Part."

provisions of the Administrative Appeals Tribunal Act 1975 (Act

No. 91 of 1975). That Act, which came into operation on 1 July 1976, established the Administrative Appeals Tribunal with power to hear and determine applications for the review of decisions made in the exercise of powers conferred by an

enactment. an expression defined in sub-section 3(1). Under

the Act the Tribunal's jurisdiction depended upon an enactment providing for the making of avoplications to the Tribunal,

sub-section 25(4) providing that the Tribunal had power to

review any decision in respect of which application was made to it under anv enactment. It was further provided in sub-section 26(2) that a reference in sub-section 25(4) to an enactment

auncluded a reference to the Schedule to tne Administrative

Appeals Tribunal Act 1975. Sub-section 26(1) provided -

"26.(1) The provisions of the Schedule have effect according to their tenor notwithstanding anything contained in any other provision of this Act (other than sub-section 25(2)) or in any provision of any other enactment in force at the commencement of this Act."

Part III of the Schedule was in the following terms -

"3.(1) Applications may be made to the Tribunal for review of decisions by the Secretary to the

(a) refusing to grant a licence or certificate referred to in requilation 254 of the Air Navigation Regulations; or

(b) varying or cancelling such a licence or certificate or suspending such a licence or certificate otherwise than under regulation 256 or 257 of those Requliations.

(a) have a matter to which a decision relates submitted for review to a board of review; or

(b) appeal against a decision, in accordance with regulation 259 of the Air Navigation Regulations if an application may be made

to the Tribunal in respect of the decision by virtue of sub-clause (1)."

Schedule, the Schedule was to apply only in respect of decisions made after the commencement of the Administrative

Apoeals Tribunal Act 1975 (viz. 1 Julv 1976). Sub-clause 1(4)

"(4) This Schedule applies to a decision made by a person to whom the power to make the decision has been delegated in like manner as 1t would have applied 1f the decision had been made by the person who delegated that power."

The Administrative Appeals Tribunal Act 1975 (Act No.

91 of 1975) has since been amended but it 1s umnecessary to refer to those amendments. Provisions to the same effect as those set out above have remained in force at all times

It is not suggested that regulation 258 of the Air Navigation Requlations was other than a valid piece of subordinate legislation when 1t was promulgated as part of

Statutory Rules 1960, No. 99 or that 1t ceased to be valid at

any time prior to 1 July 1976 when the Administrative Appeals

Tribunal Act 1975 came into operation. It is submitted,

however. that upon the coming into operation of that Act with

its provisions for applications to be made to the Administrative Appeals Tribunal from decisions of the Secretary

to the Department of Transport under, inter alia, requlation

258 of the Air Navigation Requlations and for excluding

recourse to the review and appeal procedures provided hy

requlation 259, reguiation 258 ceased to be a valid requlation.

The argument postulates that the effect of the Administrative

Appeals Tribunai Act 1975 was to delete the provisions of

regulation 259 inserted in order to comply with the mandatory requirements of sub-section 28(1) of the Air Navigation Act 1920 and thereby regulation 258 ceased to bea regulation falling within the requlation making power conferred by that

At a glance

Court

Decision date

Before

Source

Judgment (266 paragraphs)

Cited By (2)