Civil Aviation Safety Authority v Boatman [2004] FCAFC 165 (25 June 2004)

Last Updated: 22 July 2004

FEDERAL COURT OF AUSTRALIA

Civil Aviation Safety Authority v Boatman [2004] FCAFC 165

CORRIGENDUM

CIVIL AVIATION SAFETY AUTHORITY v GRAEME BOATMAN AND VALERIE KENNEDY, AND ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
ACD 13 OF 2004


SUNDBERG, STONE & SELWAY JJ
25 JUNE 2004
SYDNEY (HEARD IN CANBERRA) (VIA VIDEO LINK TO CANBERRA AND MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 13 of 2004

BETWEEN:	CIVIL AVIATION SAFETY AUTHORITY
AND:	GRAEME BOATMAN
AND:	VALERIE KENNEDY
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

JUDGES:	SUNDBERG, STONE & SELWAY JJ
DATE:	25 JUNE 2004
PLACE:	SYDNEY (heard in CANBERRA) (via Video Link To CANBERRA And MELBOURNE)

CORRIGENDUM

In the Reasons for Judgment delivered by the Court on 25 June 2004 please amend the completion; the reference to "Mr D Langmead SC" should be replaced with "Mr H J Langmead SC".







Associate:




Dated: 21 July 2004

FEDERAL COURT OF AUSTRALIA

Civil Aviation Safety Authority v Boatman [2004] FCAFC 165

CONSTITUTIONAL LAW – separation of judicial power – Civil Aviation Act 1988 (Cth) – whether s 30DE valid – Civil Aviation Safety Authority empowered to suspend civil aviation authorisation for five days – whether power of Federal Court to extend suspension on being satisfied that there are ‘reasonable grounds to believe’ that holder is involved in conduct that contravenes s 30DB is judicial power


Administrative Decisions (Judicial Review) Act 1977 (Cth)
Civil Aviation Act 1988 (Cth), ss 3, 3A, 9, 9(1)(a), 9A, 12, 12A, 12C, 20A, 29, 30DB, 30DC, 30DD, 30DE, 30DF, 30DG, 30DH, 30DI, 30DJ, 31A, 31D, 32AF
Civil Aviation Amendment Act 2003 (Cth)
Federal Court of Australia Act 1976 (Cth) s 25
Judiciary Act 1903 (Cth) ss 39B(1), 39B(1A), 78B
The Constitution ss 49, 71, 75, 76, 77, 122


Civil Aviation Amendment Bill 2003
Civil Aviation Regulations 1988 (Cth) regs 268, 269


A v Hayden [1984] HCA 67; (1984) 156 CLR 532 cited
Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 followed
Aston v Irvine [1955] HCA 53; (1955) 92 CLR 353 cited
Attorney General for the State of Queensland (Ex rel Kerr) v T (1983) 57 ALJR 285 cited
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 cited
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 cited
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 cited
Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 cited
Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 cited
Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW) 1956) [1956] HCA 22; 94 CLR 554 discussed
Farbenfabriken Bayer AG v Bayer Pharma Pty Ltd [1959] HCA 32; (1959) 101 CLR 652 cited
Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 cited
Grollo v Bates (1994) 53 FCR 218 cited
Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 discussed
HA Bachrach Pty Ltd v Queensland [1998] HCA 54; (1998) 195 CLR 547 cited
Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57 cited
Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 167 ALR 358 cited
Huddart, Parker and Co Proprietary Limited v Moorehead [1909] HCA 36; (1909) 8 CLR 330 followed
In Re The Judiciary Act and In Re The Navigation Act [1921] HCA 20; (1921) 29 CLR 257 cited
King v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1900; (2000) 109 FCR 447 followed
Loughlan v Magistrates’ Court of Victoria [1993] 1 VR 685 cited
Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307 discussed
Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333 cited
Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 206 ALR 130 cited
Muskrat v United States 219 US 346 (1911) cited
National Telephone Co Ltd v Postmaster-General [1913] AC 546 cited
New South Wales v Commonwealth [1915] HCA 17; (1915) 20 CLR 54 cited
Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 cited
P & C Cantarella v Egg Marketing Board [1973] 2 NSWLR 366 cited
Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246 discussed
Polyukhovich v The Commonwealth of Australia [1991] HCA 32; (1991) 172 CLR 501 followed
Precision Data Holdings Limited v Wills [1991] HCA 58; (1991) 173 CLR 167 followed
R v Zotti [2002] SASC 164; (2002) 82 SASR 554 cited
Sports Odds Systems Pty Ltd v State of New South Wales [2003] FCAFC 237 cited
Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 cited
Tepper v Kelly (1988) 47 SASR 271 cited
The Queen (Wexford County Council) v The Local Government Board for Ireland (Webster’s Case) (1902) 2 IR 349 cited
The Queen v Davison [1954] HCA 46; (1954) 90 CLR 353 discussed
The Queen v Hegarty; ex parte City of Sailsbury [1981] HCA 51; (1981) 147 CLR 617 followed
The Queen v Kirby; ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 followed
The Queen v Quinn; ex parte Consolidated Foods Corporation [1977] HCA 62; (1977) 138 CLR 1 cited
The Queen v Spicer; ex parte Waterside Workers’ Federation of Australia [1957] HCA 96; (1957) 100 CLR 312 discussed
The Queen v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 followed
The Queen Victoria Memorial Hospital v Thornton [1953] HCA 11; (1953) 87 CLR 144 cited
The State of South Australia v The State of Victoria [1911] HCA 17; (1911) 12 CLR 667 discussed
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 cited
Yanner v Minister for Aboriginal and Torres Strait Islander Affairs [2001] FCA 36; (2001) 108 FCR 543 discussed









CIVIL AVIATION SAFETY AUTHORITY v GRAEME BOATMAN AND VALERIE KENNEDY, AND ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
ACD 13 OF 2004


SUNDBERG, STONE & SELWAY JJ
25 JUNE 2004
SYDNEY (HEARD IN CANBERRA) (VIA VIDEO LINK TO CANBERRA AND MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 13 OF 2004

BETWEEN:	CIVIL AVIATION SAFETY AUTHORITY APPLICANT
AND:	GRAEME BOATMAN FIRST RESPONDENT VALERIE KENNEDY SECOND RESPONDENT
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA INTERVENER
JUDGES:	SUNDBERG, STONE & SELWAY JJ
DATE OF ORDER:	25 JUNE 2004
WHERE MADE:	SYDNEY (HEARD IN CANBERRA) (VIA VIDEO LINK TO CANBERRA AND MELBOURNE)

THE COURT ORDERS THAT:

1. The question reserved for the Full Court, namely ‘Whether s 30DE of the Civil Aviation Act 1988 (Cth) is valid?’, be answered ‘Yes’.
2. In default of agreement as to the costs of the question reserved, the parties and the intervener file and serve, by 5 July 2004, the orders for which they respectively contend, together with brief submissions in support.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 13 OF 2004

BETWEEN:	CIVIL AVIATION SAFETY AUTHORITY APPLICANT
AND:	GRAEME BOATMAN FIRST RESPONDENT VALERIE KENNEDY SECOND RESPONDENT
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA INTERVENER

JUDGES:	SUNDBERG, STONE & SELWAY JJ
DATE:	25 JUNE 2004
PLACE:	SYDNEY (HEARD IN CANBERRA) (VIA VIDEO LINK TO CANBERRA AND MELBOURNE)

REASONS FOR JUDGMENT

SUNDBERG J:

1 The first and second respondents hold civil aviation authorisations issued under the Civil Aviation Regulations 1988. The authorisations permit them to fly aircraft. On 13 May 2004 the applicant (CASA) suspended the authorisations pursuant to s 30DC of the Civil Aviation Act 1988 (the Act). On 20 May CASA made an application to the Court for an order under s 30DE of the Act prohibiting the respondents, for a period of twenty five days, from doing anything that would otherwise be authorised by their suspended authorisations. On 28 May the application came before Gyles J who, pursuant to s 25(6) of the Federal Court of Australia Act 1976, reserved the following question for the Full Court: "Whether s 30DE of the Civil Aviation Act 1988 (Cth) is valid?". His Honour directed CASA to serve notices under s 78B of the Judiciary Act 1903. This was done, and the Attorney-General for the Commonwealth intervened before the Full Court.

2 Sections 30DC and 30DE are in Division 3A of the Act, which is headed "Serious and imminent risks to air safety". Division 3A was inserted by the Civil Aviation Amendment Act 2003 (the 2003 Act). Subdivision B, which consists of ss 30DB to 30DD, is headed "Suspension for contravening the serious and imminent risk prohibition". Section 30DB provides:

"The holder of a civil aviation authorisation must not engage in conduct that constitutes, contributes to or results in a serious and imminent risk to air safety."

The expression "civil aviation authorisation" is defined in s 3 of the Act as

"an authorisation under the Civil Aviation Regulations to undertake a particular activity (whether the authorisation is called an authority, licence, certificate, rating or endorsement or is known by some other name."

Section 30DC(1) provides:

"Where CASA has reason to believe that the holder of a civil aviation authorisation has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB, CASA may suspend the authorisation by giving written notice to the holder."

The subsection is followed by a "Note" that CASA is not required to give the holder a show cause notice before making a decision under the subsection. Subsection (3) provides:

"The suspension ends at the end of the fifth business day after the day on which the holder was notified of the suspension, unless before that time CASA makes an application to the Federal Court under section 30DE."

A "Note" to the subsection informs the reader that if CASA makes an application in time, the suspension continues in force until it comes to an end under s 30DJ.

3 Subdivision C, which consists of ss 30DE and 30DF, is headed "Court order in relation to the serious and imminent risk prohibition". Section 30DE is as follows:

"(1) If CASA suspends a civil aviation authorisation under section 30DC, CASA may, before the end of the fifth business day after the day on which the holder of the authorisation was notified of the suspension, apply to the Federal Court for an order under this section.
(2) If the Federal Court is satisfied that there are reasonable grounds to believe that the holder has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB, the Court must make an order that prohibits the holder from doing anything that is authorised by the authorisation but that, without the authorisation, would be unlawful.
(3) In deciding under subsection (2), the Federal Court must have regard to section 3A and subsection 9A(1).
(4) Subject to section 30DF, an order continues in force for the period determined by the Federal Court when making the order, being the period (not more than 40 days) that the Court considers reasonable to allow CASA to complete an investigation into the circumstances that gave rise to CASA’s decision to suspend the authorisation."

Section 30DF empowers the Court to extend (by not more than twenty eight days) or shorten the period determined under s 30DE(4).

4 Sections 3A and 9A(1), referred to in s 30DE(3), are as follows:

"3A The main object of this Act is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.
9A(1) In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration."

CASA’s functions are listed in s 9. They include the function of conducting the safety regulation of civil air operations in Australian territory in accordance with the Act and the regulations.

5 Subdivision D, which consists of ss 30DG to 30DJ, is headed "Investigation and further action by CASA". Section 30DG provides:

"If the Federal Court makes an order under section 30DE in relation to a civil aviation authorisation, CASA must, by the end of the period that the order is in force, complete an investigation into the circumstances that gave rise to CASA’s decision to suspend the authorisation under section 30DC."

Section 30DH provides:

"(1) This section applies if, after CASA’s investigation under section 30DG:

(a) CASA has reason to believe that a serious and imminent risk to air safety would exist if the civil aviation authorisation were not varied, suspended or cancelled; and
(b) the grounds for CASA’s belief are related to the circumstances that gave rise to CASA’s decision to suspend the authorisation under section 30DC.

(2) CASA may, within 5 business days after the last day on which the order is in force:

(a) give the holder of the authorisation a show cause notice; and
(b) allow the holder to show cause, within such reasonable time as CASA specifies in the notice (not more than 28 days), why the authorisation should not be varied, suspended or cancelled."

Section 30DI provides:

"(1) This section applies if, after the end of the period specified in a show cause notice given under section 30DH:

(a) CASA is satisfied that a serious and imminent risk to air safety would exist if the civil aviation authorisation were not varied, suspended or cancelled; and
(b) the grounds for CASA’s belief are related to the circumstances that gave rise to CASA’s decision to suspend the authorisation under section 30DC.

(2) CASA may vary, suspend or cancel the authorisation, by written notice given to the holder of the authorisation within 5 business days after the end of the period specified in the show cause notice."

6 Section 30DJ provides:

"If CASA suspends a civil aviation authorisation under section 30DC and applies to the Federal Court for an order under section 30DE, the suspension continues in force until the time worked out under the table (unless earlier revoked)."

The effect of the table is that

•	if CASA’s application for an order is withdrawn or refused, the suspension ends at the time of withdrawal or refusal
•	if in the five business days after the last day on which the order was in force CASA does not give the holder a show cause notice under s 30DH, the suspension ends at the conclusion of the fifth business day after the order ceased to be in force
•	if CASA varies, suspends or cancels the authorisation under s 30DI, the suspension ends at the time the holder is notified of the variation, suspension or cancellation
•	if CASA has given the holder a show cause notice under s 30DH, but in the five business days after the last day of the period specified in the notice does not vary, suspend or cancel the authorisation, the suspension ends at the conclusion of the fifth business day after the last day of the period specified in the show cause notice.

7 The respondents attack the validity of s 30DE on two grounds. The first is that it purports to confer on the Court a power that is not judicial power. The second is that the provision does not assign jurisdiction to the Court in a "matter" for the purposes of s 39B(1A)(c) of the Judiciary Act or s 76 of the Constitution.

8 The respondents rely on seven indicia which, taken together, they submit show that the power in s 30DE is not judicial power. The first called in aid what was described as the administrative context in which the section appears. It was said, correctly, that CASA’s power to suspend an authorisation under s 30DC is administrative. It was said, again correctly, that CASA’s powers under s 30DH to give the holder a show cause notice, and under s 30DI to vary, suspend or cancel an authorisation, are also administrative. Sandwiched in between these two administrative powers, the Court is said to have a "cameo walk on walk off role" the character of which is derived from the nature of the powers conferred on CASA by the surrounding provisions.

9 The regulatory regime preceding that introduced by the 2003 Act was contained in regs 268 and 269 of the Regulations. The effect of reg 268 can be summarised as follows:

•	where CASA had reason to believe that there may be a serious risk to air safety if an authorisation were not suspended, it could suspend the authorisation
•	where CASA suspended the authorisation it was required forthwith to investigate the matter, and the suspension would cease upon completion of the investigation or at the expiration of twenty eight days from the date on which the suspension took effect, whichever was the earlier
•	where upon completion of the investigation CASA gave the holder a notice under reg 269, the authorisation remained suspended during the time specified by CASA in that notice as the time within which the holder may show cause why the authorisation should not be varied, suspended or cancelled under reg 269.

The effect of reg 269 can be summarised as follows:

•	CASA was empowered to vary, suspend or cancel an authorisation when it was satisfied that one or more specified grounds existed (including contravention of the Regulations and breach of the duty to operate aircraft safely)
•	before taking action to vary, suspend or cancel an authorisation, CASA was required to give notice to the holder of the facts that in its opinion warranted consideration being given to the variation, suspension or cancellation, and allow the holder to show cause why the authorisation should not be varied, suspended or cancelled.

As can be seen, the Court had no role in this scheme. CASA was the sole actor.

10 In the second reading speech introducing the bill that became the 2003 Act, the Minister said:

"The bill also introduces new enforcement measures, which will provide CASA with a wider range of enforcement tools to better match the regulatory action to the seriousness of the breach. These measures will help to ensure that justice is not only done but seen to be done by providing a range of options for CASA to vary, suspend or cancel aviation authorisations such as licences and air operators certificates. This is consistent with a risk based approach to safety management ....

Very importantly, included in these enforcement tools will be a scheme to allow an automatic ‘stay’ of CASA’s final decision to vary, suspend or cancel an authorisation in cases other than a serious and imminent risk to air safety. The automatic stay will enhance fairness by reducing the time an authorisation holder is grounded while awaiting a review of CASA’s decision by the Administrative Appeals Tribunal.

The bill introduces the concept of a Federal Court exclusion order, where there is a serious and imminent risk to air safety. Under the new enforcement regime, CASA will retain the power to immediately suspend an authorisation where there is a serious and imminent risk to safety, but it will be required to apply to the Federal Court within five days of its decision for the court to adjudicate the suspension.

These new reforms address the perception in aviation circles that CASA is somehow judge, jury and executioner."

The automatic stay provisions are found in s 31A, nothing in which prevents CASA from suspending an authorisation under s 30DC: s 31D.

11 The two tiered regime introduced by the 2003 Act (serious and imminent risk to air safety and less serious cases) left CASA’s role substantially unchanged as to the latter, but introduced the Court as a player at one stage in relation to the former. In serious and imminent risk cases, CASA is empowered to impose a suspension that concludes at the end of the fifth business day after the holder is notified of the suspension: s 30DC. CASA is not required to give the holder notice before imposing the suspension. This short term suspension was not inappropriately described by the Solicitor-General as an interim disqualification, similar to that imposed by courts on applications for interim injunctions. If there is to be any extension of the interim suspension, it can only be done by the Court. Any such extension is analogous to the grant of an interlocutory injunction prior to the expiration of an interim injunction. Having regard to the perceived evil the relevant part of the 2003 Act was intended to redress, it is inappropriate to characterise the Court’s function by reference to CASA’s admittedly administrative surrounding functions. The Court’s power must be characterised in its own right by reference to conventional indicia of judicial power. In this process I derive no assistance from the character of CASA’s powers.

12 An element of the argument in relation to this first indicium was the submission that whether a holder engages in conduct that constitutes an "imminent" risk to air safety is an enquiry as to a matter which may eventuate in the future. I do not agree. The question posed by s 30DE(2) is whether, on the facts before the Court, conduct that has been engaged in constitutes, contributes to or results in a serious and imminent risk to air safety. A related matter concerns the words in s 30DE(2) – "or is likely to engage in" conduct. A determination whether, having regard to past events, a person is likely in the future to behave in a particular way is an exercise commonly performed by a court. In deciding whether the driver of a motor vehicle should, by reason of past infringements, be prohibited from driving in the future, the court determines a present probability. The fact that s 30DE(2) involves the Court in determining whether, on the facts, a holder is likely to engage in contravening conduct is not an indication that the power is non-judicial.

13 The second indicium of non-judicial power relied on by the respondents is the contention that in acting under s 30DE(2) the Court is not determining rights and obligations. It is said that the subsection merely empowers the Court to extend the time within which CASA may investigate circumstances which may ultimately result in administrative action by CASA. On an application under s 30DE(2) the Court will have before it the facts that are said to amount to engaging in conduct that constitutes, contributes to or results in a serious and immediate risk to air safety. It will assess those facts against the rule of law contained in s 30DB. The exercise the Court engages in is the determination of the question whether the law imposes an obligation on the holder. To use the language of Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 to 268, it determines existing rights and duties by the application of a pre-existing standard, and not by the formulation of policy or the exercise of an administrative discretion. The test espoused by Kitto J in The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 371 at 374 is also satisfied:

"the process to be followed must generally be an enquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist."

It is true that the Court’s order is of limited duration. Under s 30DE(4) it cannot operate for more than forty days, and an extension of the period initially fixed cannot exceed twenty eight days (s 30DF(1)(a)). However the limited term of the order does not deny its determinative quality. So long as it stands, to use Kitto J’s words, the order has the determining effect his Honour describes.

14 The third indicium is said to be that the purpose of the power in s 30DE is plainly administrative. It is to facilitate investigations by CASA, "by repetition by the Federal Court" of a power already exercised by CASA to vary, suspend or cancel an authorisation. This contention fails properly to characterise what is involved in the curial process under s 30DE. It is not a repetition of CASA’s enquiry. The initial question for CASA under s 30DC is whether it has reason to believe that the holder has engaged in impermissible conduct. That is a subjective enquiry – "Where CASA has reason to believe ...". The question under s 30DE(2) is whether the Court "is satisfied that there are reasonable grounds to believe that the holder" has engaged in proscribed conduct. That is a more objective enquiry. The language reflects the type of task a court routinely performs. While the verbiage describing CASA’s and the Court’s roles is similar, it is important to their characterisation that one is committed to an administrative body and the other to a court. Thus in The Queen v Hegarty; Ex parte City of Salisbury [1981] HCA 51; (1981) 147 CLR 617 at 628 it was said:

"It is ... recognised that there are functions which may be classified as either judicial or administrative, according to the way in which they are to be exercised. A function may take its character from that of the tribunal in which it is reposed. Thus, if a function is entrusted to a court, it may be inferred that it is to be exercised judicially; it is otherwise if the function be given to a non-judicial tribunal, for then there is ground for the inference that no exercise of judicial power is involved."

See also Precision Data Holdings Ltd v Willis [1991] HCA 58; (1991) 173 CLR 167 at 188-189. In Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246 at [53]- [54] Kirby J said:

"In those cases which are not invariably instances of the exercise of judicial power, it has been said repeatedly that, in classifying the nature of a power impugned, regard may properly be had to the repository entrusted by the Parliament to exercise the power. In a sense, this was to say no more than that a court, vested with a power, would be expected to exercise it in a court-like fashion, whereas an official, entrusted with a similar power, might be expected to exercise it in an administrative manner.

The foregoing point has been brought out vividly in several cases that came to this Court relating to decisions made successively by an administrator and by a court."

After discussing those cases – Aston v Irvine [1955] HCA 53; (1955) 92 CLR 353, Farbenfabriken Bayer AG v Bayer Pharma Pty Ltd [1959] HCA 32; (1959) 101 CLR 652 and Reg v Quinn; Ex parte Consolidated Foods Corporation [1977] HCA 62; (1977) 138 CLR 1 – his Honour continued at [65]:

"The fact that the successive determinations of the magistrate and the Federal Court involve the same question does not mean that they necessarily partake of the same character for constitutional purposes. Munro, Aston, Bayer and Quinn establish the contrary proposition."

The observations of the other members of the Court at [12]-[13] are to the same effect. The fact that the power in s 30DE is reposed in the Court reinforces the view, to which I would in any event come, that the power is judicial. Even if, as the respondents contend, CASA and the Court are exercising the same power (as to which see [14]), Pasini and the cases to which it refers show that this is not determinative. The nature of the body entrusted with the power may determine its character.

15 The fourth indicium points to what is said to be the discretionary nature of the power in s 30DE(2). It was submitted that although the section appears to be couched in mandatory terms, it is in truth discretionary and devoid of any legal content, because there is no pre-existing standard which the Court is to apply. It was said that air safety is a matter uniquely within the knowledge and expertise of CASA. The respondents add that the proof that the Court’s power is administrative is that it is substantially similar to CASA’s power under s 30DC. What has been said in earlier paragraphs answers most elements of this submission. Section 30DB contains the legal standard that is to be applied to the facts. I do not accept that the power in s 30DE is discretionary. Whether the Court is relevantly "satisfied" is not a discretionary function. It is a typical judicial decision involving the application of the law to the facts. That different minds might come to different conclusions on the matter does not make it a discretionary exercise. Further, once the state of satisfaction is reached, the Court is obliged to make an order prohibiting the holder from doing anything authorised by the authorisation that, without it, would be unlawful. The similarity of CASA’s and the Court’s powers is dealt with in [14] and [15]. CASA’s knowledge and expertise in relation to air safety may be accepted, but I do not consider it a relevant pointer. The power conferred by s 30DE is no different in its nature from that routinely exercised by a court of determining whether a motor vehicle is being driven dangerously, recklessly or negligently.

16 The next indicium derives from s 30DE(3), which requires the Court to have regard to s 3A and s 9A(1). It is s 9A(1) that is important here. It requires CASA, in exercising its powers and performing its functions, to have regard to the safety of air navigation "as the most important consideration". The respondents relied on ss 12, 12A and 12C of the Act. Section 12 requires CASA to comply with any directions given by the Minister as to the performance of its functions and the exercise of its powers. Section 12A requires CASA to take account of any views notified by the Minister as to the appropriate strategic direction for CASA and the manner in which it should perform its functions. Section 12C requires CASA’s Director of Aviation and Safety to take all reasonable steps to comply with the terms of any agreement entered into with the Minister about the performance of CASA’s functions and the exercise of its powers. The respondents characterised these directions, views and terms as policy matters. Reference was made to Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR at 268 and The Queen v Spicer; Ex parte Builders Labourers Federation [1957] HCA 81; (1956) 100 CLR 277 at 290. As I understood the contention, it was that s 9A(1) requires the Court to comply with Ministerial directions, take account of Ministerial views and take reasonable steps to comply with the terms of any agreement. That is an untenable reading of s 9A(1). The subsection requires CASA to have regard to the safety of air navigation as the most important consideration. In applying the subsection mutatis mutandis to the Court, the effect of s 30DE(3) is that the Court, in coming to a decision under subs (2), must have regard to the safety of air navigation as the most important consideration. Even if s 9A(1) is not adapted as aforesaid, it will not assist the argument that the Court is required to apply or have regard to policy considerations. On a literal view the subsection merely requires the Court to note that CASA is required to regard the safety of air navigation as the most important consideration. It certainly does not subject the Court to Ministerial directions, views and terms.

17 The next indicium relied on by the respondents is what they claim is the absence of a final determination by the Court under s 30DE. It is apparent from what appears in [13] that I do not accept this claim. An order prohibiting a holder from doing anything that is permitted by an authorisation that, without it, would be unlawful, finally determines a controversy between CASA and the holder. The order is a final order. The fact that it is not of indefinite duration (see sub-s (4)) does not affect its finality. So long as it continues to operate, it is final.

18 The seventh and last indicium is that s 30DE(2) requires the Court to act in a manner inconsistent with the judicial process. It is said that CASA’s application under s 30DE is not required by the Act to be made on notice to the holder. It can be made ex parte. The possible absence of a contradictor is said to reinforce the conclusion that the power in s 30DE(2) is non-judicial. In Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW) [1956] HCA 22; (1956) 94 CLR 554 at 559 the Court said:

"Section 3 of the Purchase Act takes the course of referring a particular matter for hearing and determination to an existing court established as part of the judicial system of the State, the proceedings of which are regulated by a statutory enactment and a body of rules, and the authority of which is amplified by some, and qualified by other, provisions of the enactment, one qualification being the duty to state a case upon a question of law if required by a party. When such a course is adopted it is taken to mean, unless and except in so far as the contrary intention appears, that it is to the court as such that the matter is referred exercising its known authority according to the rules of procedure by which it is governed and subject to the incidents by which it is affected."

After quoting from the various speeches in National Telephone Co Ltd v Postmaster-General [1913] AC 546, the Court continued at 560:

"It may be remarked that the rule or principle involved is but an expression of the natural understanding of a provision entrusting the decision of a specific matter or matters to an existing court. It is no artificial presumption. When the legislature finds that a specific question of a judicial nature arises but there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality."

19 There is nothing in s 30DE or in the scheme of Division 3A as a whole to suggest that in exercising its power under that section the Court will do so in any other manner than that in which it customarily discharges its duty of hearing disputes between parties; as Kirby J said in Pasini, in a court-like fashion.

20 In King v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1900; (2000) 109 FCR 447 at [59] and [65] Gyles J, with whom Finkelstein J agreed, said:

"It is important ... to remember that Parliament assigned the function in this Division to an established Court with established procedures which, it would be assumed, would apply to the exercise of this jurisdiction, as well as the exercise of other statutory jurisdictions. It is primarily for this reason that I disagree with the conclusion of Branson J that the legislature intended to impose upon the Court an obligation to initiate inquiries to allow it to reach the requisite satisfaction going beyond considering evidence placed before it. Having in mind the way in which the Court goes about its business, it would take very clear words before it would be assumed that Parliament so intended.
...
This brings me to s 253ZP. Again, the Court only has a role upon application. In my opinion, it is implicit, because the function is given to a Court, that the jurisdiction would only be exercised on evidence presented to it, in public, and after notice given to interested parties who would be given an opportunity to participate and support or oppose."

21 The passages set out in [18] and [20] dispose of the respondents’ contention that the fact that the Act does not require the Court to proceed on notice to the holder of an authorisation points to the power in s 30DE being non-judicial. It is implicit in the conferral of the power on the Court that it will exercise it in accordance with its normal procedures. That means that, in the ordinary course, it will do so on notice to a holder. As with the exercise of its other jurisdictions, situations may possibly arise in which an emergency situation requires the Court to proceed ex parte. But that will be an exceptional case, and does not detract from the overall characterisation of the power in s 30DE as judicial power. Courts do from time to time proceed ex parte. See Grollo v Bates (1994) 53 FCR 218 at 231. It may in any event be observed that given that the initial five day suspension instituted by CASA under s 30DC continues once an application to the Court is made within that time, it is unlikely that there would be an occasion for an ex parte application. If there is a delay in notifying a holder, the suspension continues. See s 30DC(3).

22 As I understood the respondents’ case, it was submitted, independently of the seven indicia, that an analogy can be drawn between the nature of the power exercised in the warrant cases (Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307, Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57 and Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348) and that exercised under s 30DE, and that this analogy justifies classifying the latter as administrative in nature.

23 In Love at 321-322 the High Court distinguished between the duty of a judge to act judicially and the nature of an exercise of judicial power:

"The judge is under a duty to act judicially and to that extent the issue of a warrant is a judicial act but it is not a ‘judicial act in the same sense as is an adjudication to determine the rights of parties’, to use the words of Windeyer J in Electronic Rentals. It is not an order inter partes from which a party whose conversations may be overheard has a right of appeal."

The Court had earlier said (at 321):

"The very nature of the activities authorised by a warrant precludes notice to the individual whose privacy will be affected by action taken under the warrant."

These passages were applied by Brennan CJ, Deane, Dawson, Toohey and Gummow JJ in Grollo v Palmer at 360 and 389. The two features highlighted by the Court – that there is no "determination of the rights of the parties" and the ex parte nature of warrant applications – are essentially two sides of the same coin. On an ex parte application, there can be no determination between parties’ rights because only one has been heard. It is this composite feature that has been acknowledged in the cases as the essential factor that leads to the classification of the warrant power as executive rather than judicial. As Einfeld J said in Grollo v Bates at 229:

"As arises from Love and Hilton v Wells (supra), it is no part of the exercise of judicial power to perform a function principally aimed at assisting one party to litigation".

Later at 231 his Honour said:

"An opponent is usually essential for the exercise of judicial power; for it is not part of the normal judicial process to dispose of matters ex parte".

24 As appears from [20]-[21], other than in exceptional cases, applications under s 30DE are not made ex parte. They are made in the way in which disputes between parties are customarily resolved in the Court, that is upon notice to the affected party. As appears from [13], the Court does under s 30DE determine the rights of the parties. Both elements of the composite feature of the warrant case are absent. The analogy relied on breaks down. Especially in this area, analogies are dangerous servants. That is because each piece of challenged legislation has its own combination of features. It is preferable to apply to the particular provisions in suit the well-established judicial power principles identified by the High Court.

25 In my view the task imposed on the Court by s 30DE(2) involves the application of a standard to facts found, resulting in a final determination of a dispute between parties. That is the exercise of judicial power. None of the indicia relied on by the respondents produces a different result.

26 The contention that s 30DE does not assign to the Court jurisdiction in a "matter" must be rejected. The matter assigned is the dispute between the authorisation holder and CASA as to whether the authorisation should continue to operate during the period of the investigation. The specific issue within that matter is whether the holder of the authorisation has engaged in conduct that constitutes, contributes to or results in a serious and imminent risk to air safety. The requirement for the existence of a "matter", namely that the relevant legislation identify – expressly or inferentially – "some right that may be determined or privilege that may be granted by a court, or some duty or liability that is enforceable against a person by another person", is satisfied. Cf Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 206 ALR 130 at 134.

27 The question reserved should be answered "Yes".

28 Unless the parties are able to agree as to the costs of the question reserved, they should, by 5 July 2004, file and serve the orders for which they respectively contend together with brief submissions in support thereof.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated: 25 June 2004

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 13 OF 2004

BETWEEN:	CIVIL AVIATION SAFETY AUTHORITY APPLICANT
AND:	GRAEME BOATMAN FIRST RESPONDENT VALERIE KENNEDY SECOND RESPONDENT
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA INTERVENER

JUDGES:	SUNDBERG, STONE & SELWAY JJ
DATE:	25 JUNE 2004
PLACE:	SYDNEY (HEARD IN CANBERRA) (VIA VIDEO LINK TO CANBERRA AND MELBOURNE)

REASONS FOR JUDGMENT

STONE J:

Introduction

29 I have had the advantage of reading, in draft, the respective reasons of Sundberg J and Selway J in which the background to the matter before the Court is fully set out. As their Honours have noted, the question of law with which we are presently concerned is the validity of s 30DE of the Civil Aviation Act 1988 (Cth) (‘CAA’). Section 30DE is contained in Division 3A of Part III of the CAA which was introduced by the Civil Aviation Amendment Act 2003 (Cth). It is as follows:

‘30DE Application for and making of order

(1) If CASA suspends a civil aviation authorisation under section 30DC, CASA may, before the end of the fifth business day after the day on which the holder of the authorisation was notified of the suspension, apply to the Federal Court for an order under this section.
(2) If the Federal Court is satisfied that there are reasonable grounds to believe that the holder has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB, the Court must make an order that prohibits the holder from doing anything that is authorised by the authorisation but that, without the authorisation, would be unlawful.
(3) In deciding under subsection (2), the Federal Court must have regard to section 3A and subsection 9A(1).
(4) Subject to section 30DF, an order continues in force for the period determined by the Federal Court when making the order, being the period (not more than 40 days) that the Court considers reasonable to allow CASA to complete an investigation into the circumstances that gave rise to CASA’s decision to suspend the authorisation.’

30 Specifically the issue is whether s 30DE involves a valid conferral on this Court of the judicial power of the Commonwealth which, pursuant to s 71 of the Commonwealth Constitution, the Commonwealth may vest in ‘such other federal courts as the Parliament creates’.

The Civil Aviation Act 1988 (Cth)

31 The Civil Aviation Safety Authority (‘CASA’), the respondent in the proceeding, is established by the CAA and, pursuant to s 9 of the CAA, has the function of regulating civil air operations in Australia; s 9(1)(a). This necessarily includes supervision of civil aviation authorisations, which are authorisations, under the CAA or the regulations, to undertake a particular activity; civil aviation authorisations include pilot licences with which the present proceeding is concerned; s 3 CAA. In exercising its powers and performing its functions under the CAA, CASA must give priority to the safety of air navigation; s 9A.

32 An authorisation holder must not ‘engage in conduct that constitutes, contributes to or results in a serious and imminent risk to air safety’; s 30DB. Where a positive finding of contravention is made the sanctions that follow are determined by CASA; see generally Division 3A of Part III of the CAA. This Court has no role to play in relation to the merits of CASA’s decision, although the Court has power to review the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) as well as under s 39B(1) of the Judiciary Act 1903 (Cth). However, the complexity of air navigation is such that determining whether a pilot has contravened s 30DB may not be easy or quick. Given the priority that the CAA gives to the safety of air navigation it is not surprising that, by s 30DC of the Act, CASA has been given an immediate right to suspend a pilot’s licence as soon as it has ‘reason to believe’ that the pilot has contravened s 30DB. The Revised Explanatory Memorandum to the Civil Aviation Amendment Bill 2003 explains the reason for the provision of an immediate suspension right as follows:

‘The exercise of an immediate suspension power not only protects passengers and property on board aircraft that may be unsafe, it also protects the crew of the relevant aircraft, the families of passengers, persons on the ground and public confidence in aviation safety as a whole. It will be able to be exercised in short time frames, at any time. It will also strike the correct balance between the interests of safety on the one hand, and individual and commercial interests of aviation participants on the other.’

33 It is not necessary for present purposes to examine the circumstances in which CASA, under s 30DC, may legitimately have ‘reason to believe’ that there has been a contravention of s 30DB. It would seem clear, however, that CASA may exercise this power as soon as it is apprised of circumstances that suggest there is a need for an investigation. Depending on the credibility of its initial source, it is not necessary for CASA to have commenced its investigation of the alleged contravention and certainly not to have completed the investigation. It would also seem to be unnecessary for CASA to have given the pilot concerned an opportunity to comment on the allegation.

34 The priority of air safety does not, however, mean that air safety is the only consideration. Suspension of a pilot’s licence, even for a short time, is not a trivial matter and depriving a commercial pilot of a licence to fly may well affect his or her livelihood in a most serious way. This interest is recognised in the CAA by limiting CASA’s initial right to suspend a pilot’s licence to a period of five days. If CASA wishes the suspension to continue while it completes its investigation, it must make an application to the Federal Court under s 30DE(1) within five business days of the holder of the civil aviation authorisation (‘authorisation holder’) being notified of the initial suspension. As s 30DE(2) is the pivotal provision it may be helpful to set it out separately:

‘If the Federal Court is satisfied that there are reasonable grounds to believe that the holder has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB, the Court must make an order that prohibits the holder from doing anything that is authorised by the authorisation but that, without the authorisation, would be unlawful.’

35 Section 30DE(3) and (4) provide for the Court to continue the suspension for no more than 40 days (extendable by a maximum of 28 days pursuant to an application under s 30DF) and in doing so to have regard to ss 3A and 9A(1) of the CAA. It should be noted that once the Court is satisfied of the matters referred to in s 30DE(2) it has no discretion to refuse an order extending the suspension. Subject to the time limit referred to above, however, the Court does have some discretion as to the duration of the suspension; it must be a period the Court considers is reasonable to enable CASA to complete its investigation into the circumstances that prompted it to suspend the licence under s 30DC. The CAA allows for the suspension imposed by CASA pursuant to s 30DC to continue until the Court makes an order under s 30DE; see ss 30DC(3) and 30DJ CAA.

36 The purpose of the suspension, both initially and as continued by an order of this Court, is to prevent a person exercising rights conferred by the civil aviation authorisation while CASA is completing its investigation. If the Court extends the suspension CASA is obliged to complete its investigation within the time allowed by the Court under s 30DE, taking into account any variation under s 30DF. Irrespective of whether the suspension is continued by order of the Court, there is no suggestion that CASA cannot continue its investigation. The issue at stake under s 30DE is not whether the investigation goes ahead, that is a matter solely for CASA. The issue is whether the initial suspension should be continued.

The judicial power of the Commonwealth

37 The judicial power of the Commonwealth may be vested in federal courts that are created by Parliament pursuant to s 71 of the Constitution. Section 77 of the Constitution gives Parliament the power to define the jurisdiction of those courts. It is well established however, that ‘powers which are foreign to the judicial power’ may not be attached to those courts; The Queen v Kirby; ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 289 (‘Boilermakers’); see also Sue v Hill [1999] HCA 30; (1999) 199 CLR 462. Powers that are ancillary or incidental to the exercise of judicial power are not foreign to it and may be conferred on such courts; Boilermakers at 296; see also Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173. The respondents submit that the power vested in the Federal Court under s 30DE is administrative in its nature and, as indicated above, cannot be validly conferred on the Court. Implicit in this submission is the proposition that the power conferred under s 30DE is not judicial power, nor is it ancillary or incidental to the exercise of judicial power.

38 There are many ways in which one might approach the task of determining if a power can properly be described as judicial. There are ample decisions in which the High Court and others have described the nature of judicial power. The classic, and frequently quoted, description of judicial power is that of Griffith CJ in Huddart, Parker and Co Proprietary Limited v Moorehead [1909] HCA 36; (1909) 8 CLR 330 (‘Huddart Parker’) at 357:

‘I am of opinion that the words "judicial power" as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.’

39 Although in The Queen v Davison [1954] HCA 46; (1954) 90 CLR 353 (‘Davison’) at 367, Dixon CJ and McTiernan J referred with approval to Griffith CJ’s description, their Honours also noted that no ‘exclusive and exhaustive’ definition had been formulated. They pointed out that although Griffith CJ emphasised the element of controversy, such an element is ‘entirely lacking from many proceedings falling within the jurisdiction of various courts of justice in English law.’ Their Honours made the same point about elements emphasised in other definitions, such as the determination of existing rights as distinguished from the creation of new ones (see The Queen (Wexford County Council) v The Local Government Board for Ireland (Webster’s Case) (1902) 2 IR 349) and the parties’ submission of the case to adjudication and enforcement of the judgment (see Muskrat v United States 219 US 346 (1911) per Miller J at 356). Their Honours quoted the observation of the High Court in The Queen Victoria Memorial Hospital v Thornton [1953] HCA 11; (1953) 87 CLR 144 at 151, to the effect that functions, not in themselves judicial, may be committed to a court because they are incidents of the exercise of strictly judicial powers, and commented at 369-70:

‘It is this double aspect which some acts or functions may bear that makes it so difficult to define the judicial power.’

This double aspect has been recognised by Gleeson CJ who observed in Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333 at 345, that decision-making by ‘the application of legal criteria to facts as found’ is characteristic of many administrative as well as judicial functions; see also Precision Data Holdings Limited v Wills [1991] HCA 58; (1991) 173 CLR 167 at 188-89 (‘Precision Data’).

40 Ultimately the history of courts and their traditional role is of considerable importance in determining what is or is not judicial power; Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 at 267 (‘Brandy’). The point was made by Deane J in Polyukhovich v The Commonwealth of Australia [1991] HCA 32; (1991) 172 CLR 501 at 607:

‘Common sense and the provisions of Ch III, based as they are on the assumption of traditional judicial procedures, remedies and methodology ... compel the conclusion that, in insisting that the judicial power of the Commonwealth be vested only in the courts designated by Ch III, the Constitution’s intent and meaning were that that judicial power would be exercised by those courts acting as courts with all that that notion essentially requires. [emphasis added]

41 It is that history that largely explains the acceptance of voluntary sequestration, the administration of assets or judicial guidance of a trustee as appropriate subjects for the exercise of judicial power; see Davison at 365-8. It is the combined effect of history and the double aspect to which Dixon CJ and McTiernan J referred that results in there being some overlap between judicial and non-judicial functions. Consequently there is no single test that will, in every case, distinguish between judicial and non-judicial functions and determine if a grant of power is valid within Ch III of the Constitution.

42 There are, however, some features that are essential. Specifically, there must be a ‘matter’ that is the subject of the grant of power. Section 77 of the Constitution allows Parliament to make laws defining the jurisdiction of this Court with respect to any of the ‘matters’ mentioned in ss 75 and 76. In the absence of a matter within the meaning of those sections, an attempt to confer judicial power on the Federal Court will be invalid; In Re The Judiciary Act and In Re The Navigation Act [1921] HCA 20; (1921) 29 CLR 257 (‘Re Judiciary and Navigation Acts’).

43 In The State of South Australia v The State of Victoria [1911] HCA 17; (1911) 12 CLR 667 at 708, O’Connor J interpreted ‘matters’ as meaning ‘matters capable of judicial determination’. It follows that a matter is not merely a legal proceeding; it is ‘the subject matter for determination in a legal proceeding’ and there can be no matter ‘unless there is some immediate right duty or liability to be established by the determination of the Court’; Re Judiciary and Navigation Acts at 266. Those rights, duties and liabilities must relate to concrete situations and ‘exist independently of the jurisdiction or a court or its procedures’; Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 (‘Abebe’) at 517 per Gleeson CJ and McHugh J; see also Kirby J at 588-9 and Callinan J at 603-5; see also The Queen v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 (‘Tasmanian Breweries’) at 374 and Precision Data at 189. They are not to be determined by ‘the formulation of policy or the exercise of an administrative discretion’; Brandy at 268.

44 The conclusive determination of existing rights, duties and liabilities, (although subject to appeal), is ‘at the heart’ of the constitutional notion of a matter; Abebe at 524 per Gleeson CJ and McHugh J. Their Honours elaborated on this point in their recent decision in Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 206 ALR 130 at 134:

‘A "right or privilege or protection given by law" may give rise to a "matter" within the meaning of ss 75 and 76. Likewise, an existing claim of right or any criminal liability or civil duty imposed by federal legislation may also give rise to a "matter" within the meaning of ss 75 and 76. However, there can be no "matter" for the purpose of ss 75, 76 and 77 of the Constitution unless the relevant legislation identifies - expressly or inferentially - some right that may be determined or privilege that may be granted by a court, or some duty or liability that is enforceable against a person by another person. Most "matters" involve the determination of a duty or liability in one party and a correlative right or standing in another person to enforce the duty or liability.’ [footnotes omitted]

Although their Honours went on to refer to ‘matters’ where there is no lis inter partes or adjudication of rights, they emphasised that such matters were exceptions to the general rule.

45 The rejection in Re Judiciary and Navigation Acts, of the legislature’s attempt to give the High Court the power to issue advisory opinions reinforces the importance of there being a ‘controversy’ to be resolved. Where a court is given power to resolve a controversy between subjects of the Crown, or between the Crown and a subject, by determining existing rights, duties or liabilities and it is also given the power to enforce its determination, there would need to be compelling other considerations for the power not to be properly described as a judicial power; Davison at 367-8. Where these circumstances exist it is not to the point that, as their Honours observed at 368,

‘It may be said of each of these various elements that it is entirely lacking from many proceedings falling within the jurisdiction of various courts of justice in English law.’

Nature of the power conferred by s 30DE

46 The respondents submit that in this proceeding there is no matter in the sense described above because there is no controversy that can be determined on principles of law and because the resolution of the issues in s 30DE of the CAA requires the Court to take account of political rather than judicial considerations. They submit that s 30DE involves an exercise of administrative power because it involves not the determination of existing rights and obligations, but whether there are risks that are ‘serious and imminent’, that is, a determination as to future events. In support of these submissions they contend that there is no pre-existing standard for the Court to apply, that air safety is a matter uniquely within the expertise of CASA and that the Court is not empowered to make a final determination. In addition they point to the fact that the CAA does not require notice of an application under s 30DE to be given to the relevant authorisation holder and therefore the application could be made ex parte. The respondents say that the fact that the application could be heard without a contradictor reinforces the characterisation of the power under s 30DE as a non-judicial power, as does the fact that the Court is mandated to continue the suspension initially imposed by CASA if it reaches the requisite satisfaction.

47 Under s 30DE the Court is required to decide if it is ‘satisfied that there are reasonable grounds to believe’ that the authorisation holder suspended under s 30DC ‘has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB’. That is the ‘matter’ for determination. The rights and privileges of an authorisation holder (in this case the licence to fly an aeroplane) are at stake in any proceeding brought under s 30DE. Section 30DB sets out the criterion by which that determination is to be made. As previously mentioned, s 30DE(3) requires the Court, in making its decision, to have regard to s 3A and ss 9A(1) of the CAA. Those sections provide:

‘3A The main object of this Act is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.
...
9A(1) In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.’

48 The respondents submitted that the effect of the direction in s 9A(1) was to require the Court to have regard to ministerial views and directions in making its determination, in the same way that ss 12, 12A and 12C of the CAA require CASA to do. That submission must be rejected. In my view, the effect of the direction is to require the Court (as well as CASA) to regard the safety of air navigation as the most important consideration. Further, the reference to s 3A merely directs the Court to have regard to the expressed main object of the statute. There is no justification for regarding either direction as subjecting the Court to ministerial policy other than is expressed in the CAA.

49 In making its determination under s 30DE the Court must consider the conduct that is said to have occurred and assess that conduct against the criterion of ‘a serious and imminent risk to air safety’. In assessing the conduct the Court is not in the position of having to formulate its own standards but may be guided by the detailed standards regulating air safety set out in the relevant regulations, Civil Aviation Publications and Civil Aviation Orders as well as other evidence before the Court. This distinguishes the instant case from The Queen v Spicer; ex parte Waterside Workers’ Federation of Australia [1957] HCA 96; (1957) 100 CLR 312 (‘Waterside Workers’). In Waterside Workers the High Court held that s 37 of the Stevedoring Industry Act 1956 (Cth) was invalid because it purported to confer an administrative or industrial power on the Commonwealth Industrial Court. The section was concerned with the right to appeal of a person whose registration as a waterside worker had been cancelled or suspended. Section 37(2) provided that if the Court was satisfied that the cancellation or suspension should be set aside or varied it could do so. In their joint judgment, Dixon CJ, Williams, Kitto and Taylor JJ commented at 317, that a discretion to grant or withhold a remedy must be ‘governed or bounded by some ascertainable tests or standards’. Their Honours also said, at 319:

‘If s 37 had been framed in such a way as to invest the Commonwealth Industrial Court with power to hear and determine issues defined with more or less precision as to the infringement by waterside workers of prescribed standards of conduct ... there might have been little difficulty in treating the duty or authority thus imposed or conferred upon the court as part of the judicial power of the Commonwealth.’

50 As Sackville J pointed out in Yanner v Minister for Aboriginal and Torres Strait Islander Affairs [2001] FCA 36; (2001) 108 FCR 543 (‘Yanner’) at 555-6, the legislative history of the provision considered in Waterside Workers was important to the High Court’s conclusion. The same power had formerly been reposed in the Commonwealth Court of Conciliation and Arbitration, which was not a Ch III court. The High Court inferred from this history that its exercise should be governed, among other considerations, by consideration of ‘all matters which might seem relevant to a sound and wise administrative control over the stevedoring industry’; Waterside Workers at 320.

51 In Yanner, the absence of discernible criteria in the legislation for the exercise of a statutory discretion was one reason the majority of a Full Federal Court (Drummond and Kiefel JJ, Sackville J dissenting) held that s 31(3) of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) was an invalid attempt to confer non-judicial power on the Federal Court. Section s 31(3) of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) provided that a person was not disqualified from appointment as an ATSIC commissioner if, among other reasons, the Federal Court ‘declares that in spite of the person’s conviction, he or she ought not to be disqualified’. On this point Sackville J differed only in that his Honour was of the opinion that the tests or standards necessary to characterise the power as judicial could be gleaned from the statue guided by the ‘principles applicable to similar provisions in other fields’; Yanner per Sackville J at 559. As I have already indicated, in my view these cases are distinguishable from the present. A court making a determination under s 30DE would find in the CAA, in the regulations made under it and in other evidence before it, sufficient guidance to assess the impugned conduct.

52 The purpose of an application by CASA under s 30DE is to extend the initial suspension of a civil aviation authorisation. Although the CAA does not require notice of such an application to be given to the authorisation holder, other than where the holder decides not to enter an appearance it is difficult to imagine circumstances in which the application would be heard ex parte. The normal procedure of the Court would, as in this case, require the application to be served on the holder; O 7 r 1 Federal Court Rules. The fact that once an application is made to the Court within the period required under s 30DE(1) the initial suspension continues until the Court makes an order (see [35] above) also means it is extremely unlikely that there would be a need for the Court to hear the application ex parte. Even if, for reasons that I cannot presently imagine, it should be necessary for the Court to hear the application ex parte, it would not be a novel approach but a recognised aspect of the Court’s procedures. While most applications are heard inter partes, in limited circumstances ex parte orders may be made; Grollo v Bates (1994) 53 FCR 218 at 231. A Court faced with an ex parte application must consider whether such an order would be consistent with the demands of justice. In my view, however, a decision that the circumstances warrant an order being made ex parte is not inconsistent with this Court exercising judicial power.

53 Under s 30DE(2) the Court must decide if the initial suspension is to be continued, with a consequent impact on the rights of the authorisation holder. The Court must consider if the prohibition contained in s 30DB had been breached. This involves CASA putting before the Court the facts of the alleged contravention that are said to constitute a serious and imminent risk to air safety as well as any other evidence relevant to the assessment that the Court must make under s 30DE(2). The authorisation holder has an obligation not to contravene s 30DB and the Court must decide if he or she has done so or is likely to do so. It determines this question with reference to the standards laid down by the Act and the regulations. CASA’s right to interfere with the authorisation holder doing that which is permitted by the authorisation is conditioned by the Court’s determination under s 30DE(2).

54 The determination that the Court makes under s 30DE(2) should not be confused with the quite separate determination that CASA, under s 30DI, must make once its investigation is complete. The Court’s determination relates to a more limited question (whether there are reasonable grounds to believe etc...) and will presumably be based on more limited evidence; but in relation to that question its decision is final. The Court’s order that the initial suspension should or should not be extended finally disposes of the question whether the initial suspension should be extended. The order is no less final because the period of the suspension is limited by s 30DE(4), or because a further application to extend or shorten the period may be made under s 30DF. The fact that the Court’s determination is subject to appeal under s 25 of the Federal Court of Australia Act 1976 (Cth) does not affect this characterisation; Huddart Parker at 357. The Court must make its determination objectively (‘reasonable grounds’). I am not convinced that the requirement that the Court be ‘satisfied’ indicates a discretionary power but, even if it does, it would not be inconsistent with the Court exercising judicial power; Tasmanian Breweries at 377.

55 The respondents also submitted that the Court’s power under s 30DE(2) took on an administrative character because it is exercised in the context of the undisputedly administrative powers of CASA. The respondents referred to the Court having only a ‘cameo’ role in the overall administrative task of investigating the alleged contravention of s 30DB. The purpose of extending the initial suspension imposed by CASA, it was submitted, is to facilitate CASA’s investigation, and is therefore ancillary to that administrative function. I do not accept that submission. As discussed in [32] and [33] above, there are rational reasons for vesting the decision whether to extend the initial suspension in the Court. Whether the power given to the Court is judicial must be decided with respect to the established principles that determine such matters.

56 The fact that the Court has only a limited role to play in the overall controversy between the parties does not undermine the judicial nature of the power vested in it. As Gleeson CJ and McHugh J said in Abebe at 525:

‘Nothing in the terms of s 77 or Ch III of the Constitution requires the Parliament to give a federal court authority to decide every legal right, duty, liability or obligation inherent in a controversy between subjects or between a subject and the Crown merely because it has jurisdiction over some aspect of the controversy.’

57 The respondents submitted that there is an analogy between the nature of the power conferred by s 30DE(2) and the power to issue search warrants, which has been authoritatively accepted as administrative in nature; Aston v Irvine [1955] HCA 53; (1955) 92 CLR 353, Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57, Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307, Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 and Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348. That analogy, it was submitted, leads to the conclusion that the power conferred by s 30DE(2) is also administrative. I do not find this analogy helpful. To my mind it assumes what it seeks to prove. Whether a particular power is judicial or non-judicial must be decided by application of established principles and criteria. Analogy may assist in identifying the principles or criteria but it can never be a substitute for them. I accept that there is no single definition or rule that can be applied to determine the issue however, as mentioned above at [44], if a power has accepted hallmarks of judicial power it is highly likely to be judicial.

58 In Yanner at 545, Drummond J, summarising the factors that led him to conclude that s 31(3) of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) was invalid, listed the following points:

‘(1) it is a discretionary power to be exercised in circumstances where there are no criteria for its exercise discernable in the legislation;
(2) the power involves the creation of a new right as opposed to the determination of existing rights;
(3) the exercise of the power does not involve an adjudication between disputants; and
(4) it involves the exercise by the Court of a new power neither inherently judicial in character nor a power with that character because historically it has been exercised by courts of law.’

None of those factors apply here. The power conferred by s 30DE(2) involves the final determination of the existing rights and obligations involved in the matter before the Court. It is determinable with reference to standards and principles that have their source in the legislation. These factors, in my view, are sufficient to conclude that the power is judicial power. For present purposes I do not think it is necessary or desirable to attempt to distinguish the search warrant cases. It may be that, just as some powers are categorised (perhaps anomalously) as judicial because they have traditionally been exercised by courts (see [41] above), categorisation of the power to issue search warrants has been influenced by its history as part of the investigation of criminal offences. The fact that applications for search warrants are necessarily ex parte may be another relevant factor. I do not, however, express any conclusion on that issue.

59 For the reasons I have set out above, the question reserved should be answered ‘Yes’. I agree with the orders proposed by Sundberg J.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 25 June 2004

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 13 OF 2004

BETWEEN:	CIVIL AVIATION SAFETY AUTHORITY APPLICANT
AND:	GRAEME BOATMAN FIRST RESPONDENT VALERIE KENNEDY SECOND RESPONDENT
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA INTERVENER

JUDGES:	SUNDBERG, STONE & SELWAY JJ
DATE:	25 JUNE 2004
PLACE:	SYDNEY (HEARD IN CANBERRA) (VIA VIDEO LINK TO CANBERRA AND MELBOURNE)

REASONS FOR JUDGMENT

SELWAY J:

60 A Judge of this Court has reserved a question of law for the answer of the Full Court, namely "Whether s 30DE of the Civil Aviation Act, 1988 (Cth) is valid?".

61 Pursuant to Order 50 Rule 1 of the Federal Court Rules a question to be reserved must be in the form of a "special case". Such a procedure requires that all facts necessary for the determination of the question of law be stated in the special case. At common law a Court hearing the special case could not inquire beyond those facts - indeed, subject to the relevant statutory context, it usually could not even draw inferences from the facts as stated in the special case: see Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 at 482-484. In this instance no facts are stated. However, the question reserved by His Honour in this case is a question of law relating to constitutional validity. In relation to such a question the Court can make such factual inquiries, even on a case stated, as may be necessary for it to determine the question of constitutional validity: see Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 87-88 (where the High Court ascertained further facts when hearing an appeal from a decision of the South Australian Supreme Court on a case stated from a Magistrate). Whether the Court should make such inquiries is another matter: see Sport Odds Systems Pty Ltd v State of New South Wales [2003] FCAFC 237 (Sport Odds) at [47]-[50]. However, in this instance the relevant fact necessary to answer the constitutional question is not contentious, and is readily ascertainable from the Court's file. Notwithstanding that the procedure adopted in this case would not seem to conform with the requirements of Order 50 Rule 1, there is no reason why the Court cannot answer the question reserved.

62 The relevant fact in this case is that which establishes a sufficient jurisdictional basis for this Court to answer the constitutional question raised by the question reserved. That fact serves to show that the legal question reserved is not advisory or hypothetical, but properly arises in these proceedings. The relevant fact is that the applicant (CASA) alleges in these proceedings that:

(a) The respondents are each the holder of a "civil aviation authority" as defined in the Civil Aviation Act, 1988 (Cth) (the CAA);
(b) CASA has reason to believe that each of the respondents has engaged in conduct that contravenes s 30DB of the CAA. That section provides:
The holder of a civil aviation authorisation must not engage in conduct that constitutes, contributes to or results in a serious and imminent risk to air safety.
(c) CASA has suspended the authorisation of each of the respondents pursuant to s 30DC of the CAA. That section provides:

(1) Where CASA has reason to believe that the holder of a civil aviation authorisation has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB, CASA may suspend the authorisation by giving written notice to the holder.

Note: CASA is not required to give the holder a show cause notice before making a decision under this subsection.

(2) The notice of the decision must include a summary of Subdivisions C and D. However, a failure to include such a summary does not affect the validity of the notice.

(3) The suspension ends at the end of the fifth business day after the day on which the holder was notified of the suspension, unless before that time CASA makes an application to the Federal Court under section 30DE.

Note: If CASA makes an application in time, the suspension continues in force until it comes to an end under the rules in section 30DJ.

(d) Before the end of the fifth business day after the day on which the respondents were notified of the suspension, CASA applied to this Court for an order under section 30DE(2) of the CAA.

63 Assuming that these allegations can be established, this Court's jurisdiction arises out of s 30DE of the CAA which provides:

(1)	If CASA suspends a civil aviation authorisation under section 30DC, CASA may, before the end of the fifth business day after the day on which the holder of the authorisation was notified of the suspension, apply to the Federal Court for an order under this section.

(2)

If the Federal Court is satisfied that there are reasonable grounds to believe that the holder has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB, the Court must make an order that prohibits the holder from doing anything that is authorised by the authorisation but that, without the authorisation, would be unlawful.

(3)	In deciding under subsection (2), the Federal Court must have regard to section 3A and subsection 9A(1).

(4)

Subject to section 30DF, an order continues in force for the period determined by the Federal Court when making the order, being the period (not more than 40 days) that the Court considers reasonable to allow CASA to complete an investigation into the circumstances that gave rise to CASA's decision to suspend the authorisation.

64 The period of suspension can extend for up to 40 days from the date of the order. Plainly enough the date of the order may be later than the date on which CASA makes its application to the Court, but the suspension continues during the interim: see ss 30DC(3) and 30DJ of the CAA. Under s 30DF of the CAA the Court can extend (by up to 28 days) or reduce the period of suspension ordered under s 30DE of the Act.

65 It would seem clear that the purpose of the suspension is to prevent the holder of an authorisation from exercising the rights conferred by the authorisation during the period that CASA requires to complete its investigation. This is clear enough by the terms of s 30DE(4) of the CAA which requires the Court when making an order to fix a period of not more than 40 days "... that the Court considers reasonable to allow CASA to complete an investigation ...". It is reinforced by the requirements of s 30DG of the CAA which impose a duty upon CASA to complete its investigation by the end of the period of suspension imposed by the Court.

66 Once the investigation is completed CASA may vary, suspend or cancel the authorisation if "satisfied that a serious and imminent risk to air safety" would otherwise exist (s 30DI(1)(a) of the CAA). CASA's powers in this regard are subject to compliance with the requirements of s 30DH of the Act requiring notice to the authority holder and affording the authority holder a right to show cause why the relevant powers should not be exercised. This Court has no role in relation to that decision, save for its usual review jurisdiction under the Administrative Decisions (Judicial Review) Act, 1977 (Cth) and under s 39B(1) of the Judiciary Act, 1903 (Cth). Save for the power conferred by s 30DE, the CAA does not seek to vest the judicial power of the Commonwealth on any court in relation to the ultimate question of whether the actions of an authority holder were in breach of s 30DB of the CAA and whether (and if so what) action should be taken in relation to such a breach. Those issues are left for CASA to resolve and determine.

67 The question reserved raises the issue of whether s 30DE of the CAA exceeds the legislative power of the Commonwealth Parliament in seeking to confer on this Court power other than the judicial power of the Commonwealth.

68 It is a necessary inference from the structure and text of the Commonwealth Constitution and, in particular, of Chapter III of the Constitution that the judicial power of the Commonwealth is separate and distinct from other governmental powers: see Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 (Wilson) at 10-11. One consequence of this distinction is that the "judicial power of the Commonwealth" cannot be conferred on any body other than the courts identified in s 77 of the Constitution: see New South Wales v Commonwealth [1915] HCA 17; (1915) 20 CLR 54 at 62. Of course there are qualifications arising from other provisions of the Constitution, such as s 49 (the privileges of the Commonwealth Parliament) and s 122 (the Territory power).

69 Another consequence is that the Commonwealth Parliament cannot confer on federal courts any power other than the "judicial power of the Commonwealth" or a power that is ancillary or incidental to a judicial purpose: see The Queen v Kirby Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 296. Again there are some qualifications arising from other provisions of the Constitution, such as s 122.

70 The necessary distinction between "judicial power" and other powers is a functional distinction. The judicial function can only sensibly be understood and described by reference to what courts do and historically have done, and by the way in which they do it and historically have done it: see Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 (Nicholas) at 185. Broad descriptions of the nature of judicial power and of the judicial function can and have been attempted. Judicial power is commonly understood to involve the authoritative determination of whether legal rights exist or whether they have been transgressed or whether legal duties have been breached together with the consequent imposition of any penalty or the ordering of any legal remedy: see, for example, Huddart Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330 at 357; Wilson at 11; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 555. However, such definitions are not exhaustive. As it was put by McHugh J in Nicholas at 219:

‘... They are simply descriptive of factors that are usually present when a tribunal is called on to exercise judicial power. Thus, although much emphasis has been given to the need for judicial power to involve binding and authoritative decisions between subjects or between subjects and the Crown, it is clear that not every binding and authoritative decision made in the determination of a dispute between such parties will constitute the exercise of judicial power. Similarly, although judicial power requires a determination of existing rights and duties according to law, an exercise of an administrative or arbitral power may also involve a determination of existing rights and duties. It is also probably necessary for a decision to be enforceable before it can be said to have been given in the exercise of judicial power although the enforcement need not be undertaken by the Court responsible for the exercise of the power. For present purposes, however, it is unnecessary to attempt any more precise definition of judicial power than that which appears in Huddart, Parker and Fencott.’ [footnotes omitted]

71 In this case the respondents have submitted that there are a number of factors which, taken together, serve to distinguish the Court's power under s 30DE of the CAA from the "judicial power of the Commonwealth". Those factors included:

(a) The power conferred by s 30DE does not involve the determination of existing rights;

(b) The power is in aid of or for the purpose of an administrative power;

(c) The power requires the Court to consider policy factors;

(d) The decision is not final;

(e) The process of decision making is inconsistent with the judicial process;

(f) The discretion conferred on the Court is too broad.

72 There are a number of problems with this method of analysis in this case. Not least is that some of the factors identified by the respondents cannot be accepted, at least on the broad basis upon which they were put. For example, the respondents argued that the reference to "section 3A and subsection 9A(1)" in s 30DE(3) of the CAA had the effect that the Court was required to take into account in determining whether to make an order, any Ministerial policy directions that may be given to CASA under various provisions of the Act. Whatever subsection (3) does mean, it clearly does not have the effect of requiring the Court to give effect to Ministerial directions.

73 Similarly the argument put by the respondents that the discretion conferred on the Court by s 30DE(2) is so broad as to be consistent with the judicial function, cannot be accepted. True it is that a broad discretionary power to create new rights is indicative of legislative rather than executive power. But s 30DE(2) of the CAA does not confer legislative power. It is a precondition of the conferral of power under that subsection that the Court be "satisfied that there are reasonable grounds to believe that the holder has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB". The statutory requirement to be "satisfied that there are reasonable grounds" causes some problems in interpretation involving, as it does, an onus of proof ("satisfied") as to an objective fact ("reasonable grounds to believe") where the objective fact itself involves issues of judgment and assessment: see, for example, Tepper v Kelly (1988) 47 SASR 271 at 272-273; Loughlan v Magistrates' Court of Victoria [1993] 1 VR 685 at 692 and contrast R v Zotti [2002] SASC 164; (2002) 82 SASR 554. However, notwithstanding those problems in interpretation, the words "satisfied that there are reasonable grounds" are capable of being interpreted and applied by a court, as the above cases show.

74 The words "engaged in, is engaging in or is likely to engage in conduct the contravenes section 30DB" of the CAA are similarly capable of being interpreted and applied by a court. The respondents argued that the requirement in s 30DB that there be a "serious and imminent risk to air safety" involved a broad subjective discretion that was inappropriate for a judicial function. However, it does not involve any broader discretion than does the determination of whether an act or omission is negligent, or reckless. These determinations are plainly consistent with the judicial function. It is possible that trial courts will make errors in their initial understanding of the meaning of s 30DB of the CAA, at least until that meaning is clarified by the usual judicial process of reasoned decisions, appeals and precedent. However, that is true whenever the Parliament chooses to use a form of words which involve some ambiguity or at least which require fresh judicial interpretation. In my view the statutory formulation in s 30DE of the CAA of the basis for this Court's jurisdiction does not have the consequence that the jurisdiction conferred is other than the judicial power of the Commonwealth.

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] HCA 3; (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] HCA 67; (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] HCA 51; (1981) 147 CLR 617 at 628; HA Bachrach Pty Ltd v Queensland [1998] HCA 54; (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.

76 Given these large areas of functional overlap between judicial and other governmental powers it is often not of any great assistance merely to identify a range of factors that may or may not be present in any particular case on the basis that those factors are indicative of the character of the particular governmental power. What is likely to be more useful is to look at existing categories of functions that have been judicially or historically accepted as being functions that can be characterised as judicial or non-judicial and then to identify in what manner and to what extent those functions differ from those in the case at hand. History, practice and judicial analysis may also be referred to for the purpose of identifying the relevance and significance of any differences that may be identified. The purpose of the inquiry is to identify by analogy whether the function being conferred in the case at hand can properly be characterised as judicial power or not.

77 In this case the category of functions having some apparent similarity to the power conferred by s 30DE of the CAA is the power to issue search warrants. There is an example in s 32AF of the CAA:

(1) An investigator may apply to a magistrate for a warrant under this section in relation to particular premises.

(2) Subject to subsection (3), the magistrate may issue the warrant if satisfied, by information on oath, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, on the premises a particular thing that may afford evidence of the commission of an offence against this Act or the regulations.

(3) The magistrate must not issue the warrant unless the investigator or someone else has given the magistrate, either orally or by affidavit, any further information the magistrate may require about the grounds on which the issue of the warrant is being sought.

78 The power to be exercised by a magistrate under s 32AF(2) has some similarity to the power conferred on the Court by s 30DE of the CAA. Both powers are related to an investigation process being undertaken by the executive; both powers are conditional upon the relevant decision maker being "satisfied" that there are "reasonable grounds"; both powers relate to a breach of a duty imposed by the CAA.

79 It is clear that the power of a Magistrate under s 32AF of the CAA to issue a search warrant is a non-judicial power. The power is exercised by a Magistrate as a persona designata, not as a judicial officer. It is a power that cannot be conferred on a Court. That has been clearly established in the cases: see Aston v Irvine [1955] HCA 53; (1955) 92 CLR 353 at 363; Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 92; Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57 at 67; Love v Attorney General (NSW) [1990] HCA 4; (1990) 169 CLR 307 (Love) at 319-323; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 444; Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 359-360. The Solicitor General for the Commonwealth (intervening) accepted that the function conferred by s 32AF of the CAA was an executive function - not a judicial one. The reason why the relevant function has historically been so treated is clear enough. At least within the common law tradition, the investigation of criminal offences has not been treated as part of the judicial function. This may be contrasted with the tradition in France and other civil law countries where the judiciary do have a role in the investigation of crime. As discussed below, it may also be contrasted with the traditional role and function of common law courts, particularly those exercising equitable jurisdiction, to make pre-trial and even pre-action orders in civil proceedings so as to assist the parties in the investigation and preparation of their respective cases.

80 The question then is what are the features that relevantly distinguish the conferral of jurisdiction on this Court under s 30DE of the Act from the conferral of a non judicial power by the issue of a search warrant. It seems to me that there are five possible distinguishing features that need to be considered:

(a) The function is conferred on a Court, not on an administrative body. As discussed above, that may be important where the function is one that could be either administrative or judicial depending upon whom the function is conferred upon. However, in the case of search warrants the cases are clear that the function is entirely administrative: see Love. In my view this is not a distinguishing factor at least in this case at least until it has been determined that the function is one which is capable of being a judicial function. This involves further analysis of the other factors referred to below.
(b) The power is to be exercised inter partes whereas the issue of a search warrant is usually ex parte. Although the respondents argued that the procedure in relation to an application under s 30DE of the CAA is an ex parte procedure, I am satisfied that the ordinary procedures of this Court are applicable in relation to such an application: see Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW) [1956] HCA 22; (1956) 94 CLR 554 at 560. This Court does have an inherent jurisdiction to make orders ex parte if it is necessary to do so in the interests of justice, but in the usual course the proceedings in this Court are inter parte proceedings. There is no reason why proceedings under s 30DE of the CAA should be any different.
The fact that the proceedings under s 30DE of the CAA are inter parte (in contrast to the power under s 32AF) is a relevant factor suggesting that the power conferred by s 30DE of the CAA is more analogous to judicial power than is the power to issue a search warrant. However, by itself it would not seem to me to be a sufficiently distinguishing factor to enable the search warrant cases to be distinguished. I note, for example, that extradition proceedings are also clearly treated as an exercise of administrative rather than judicial power, even though those proceedings are inter partes: see Aston v Irvine [1955] HCA 53; (1955) 92 CLR 353; Pasini at 253-254.
(c) The function relates to disciplinary powers, rather than criminal powers. As already noted, a distinction can be drawn between the investigation of criminal offences, where the power to issue search warrants has been characterised as non-judicial, and the investigation of civil claims where similar powers have been treated as judicial. The power of this Court under Order 15A Rule 6 of the Federal Court Rules to order pre-action discovery in civil proceedings is an example. That power has been held to be constitutionally valid, although it may be that the particular issue in relation to the separation of judicial power was not considered: see Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 167 ALR 358. Nevertheless, the Full Court in that case did discuss the historical practice of Chancery in making orders for pre-action discovery (see at 364-365). For present purposes it may be accepted that the making of pre-action orders for discovery may properly be considered as an aspect of the judicial power. In my view the fact that the power conferred by s 30DE of the CAA relates to the investigation of a disciplinary breach under a licensing scheme, rather than to a criminal investigation does serve to distinguish this case from those involving a search warrant. The distinguishing effect is ameliorated to a degree in that the relevant investigations may also be directly applicable to criminal offences also: see, in particular ss 20A and 29 of the CAA.
(d) There may be a relevant difference between the powers conferred by s 30DE and s 32AF of the CAA in the extent to which the relevant powers actually assist the investigative process. A search warrant directly authorises what would otherwise be an unlawful act (the entry onto property and the search and seizure of property whilst there) for the purposes of obtaining evidence. An order of the Court under s 30DE of the CAA only suspends the relevant authority for the period specified in the order. Nevertheless, as already noted, the purpose of the power conferred by s 30DE of the CAA must be, at least in part, the facilitation of the investigation being undertaken by CASA. In the result I think that this factor, if it does operate to distinguish between the two powers, is not a significant distinction between them.
(e) The final factor that distinguishes the power conferred on the Court by s 30DE of the CAA from the power to issue a search warrant is the context and purpose in which the power is conferred. Ultimately search warrants are issued in aid of the criminal judicial process, in the same way that pre-action discovery is in aid of the civil judicial process. Both of those processes ultimately involve the exercise of judicial power. The distinction between pre-action orders to assist civil and/or criminal investigations has already been noted. But even in relation to civil matters in my view the conferral on the Court of the power to make orders for discovery in Order 15A of the Federal Court Rules is only valid because there is, in contemplation, a potential judicial proceeding in which the discovered documents might be relevant. If such powers of discovery were conferred on a court for the purpose of assisting a Minister to undertake an administrative investigation then in my view the power is likely to be characterised as administrative, not judicial: see, for example, the comments of Windeyer J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 390 that judicial power must be exercised separately from the exercise of other governmental powers.
In this case the ultimate process is not judicial. The Court has no ultimate role in determining whether there has been a breach of s 30DB of the Act. The function of making an order to suspend the authorisation is not in the furtherance of or incidental to a judicial function - it is in furtherance of or incidental to an administrative function of investigating and determining breaches of s 30DB of the CAA.
This is not to deny that Courts can exercise judicial power in aid generally of the rule of law. The grant of injunctions to prevent anticipatory breaches of the criminal and civil law is an obvious example: see Attorney General for the State of Queensland (Ex rel Kerr) v T (1983) 57 ALJR 285 at 286. However, it could not be argued that the jurisdiction in this case was to serve any broader purpose of facilitating the rule of law. The purpose is clearly to facilitate a function that the Commonwealth Parliament had chosen to confer upon an executive agency. It is an administrative function.

81 After considering these various factors I have reached the view that the power conferred on this court by s 30DE of the Act is not judicial power. Consequently the conferral of that jurisdiction upon this Court is invalid. The fact that it is CASA that has the function under the CAA of determining whether or not there has been a breach of s 30DB of the Act seems to me to compel the conclusion that the power conferred on the Court by s 30DE of the Act is an administrative or executive power. This is so notwithstanding that there are some features of the power conferred by s 30DE of the CAA which are more analogous to judicial power than is (for example) the power to issue a search warrant under s 32AF of the CAA.

82 In these circumstances it is unnecessary for me to consider the separate question as to whether the jurisdiction conferred on the Court is in respect of a "matter". That question is related to the question of whether the jurisdiction conferred involves the exercise of judicial power (see, for example Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 206 ALR 130 at 134). Having come to the view that the jurisdiction conferred on the Court does not involve judicial power I do not think any useful purpose would be served having regard to the facts in this case by discussing separately the question of whether there is, in any event, a "matter" in relation to which judicial power has been conferred.

83 For these reasons I would answer the question reserved as follows:

"Whether s 30DE of the Civil Aviation Act, 1988 (Cth) is valid? Answer: No"

84 Given that my view is a dissenting one it is not necessary to consider to what extent other provisions of the CAA may need to be read down or severed in light of the invalidity of s 30DE. In any event that issue does not strictly arise in light of the limited question that has been reserved. The parties have not made full submissions in relation to it. Nevertheless, I refer to the comments on severance in SportOdds at [18]-[21] and note that there may be a real question of whether the Parliament could have intended that those provisions of the Civil Aviation Amendment Act, 2003 (Cth) which brought into operation Division 3A of the CAA or which revoked the pre-existing regulation 268 of the Civil Aviation Regulations 1988 would operate in circumstances where s 30DE of the CAA was invalid.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated: 25 June 2004

Counsel for the Applicant:	Mr I Harvey
Solicitor for the Applicant:	Mr A Anastasi, Civil Aviation Safety Authority
Counsel for the Respondents:	Mr D Langmead SC with P Cawthorne
Solicitor for the Respondents:	Grundy Maitland & Co
Counsel for Intervener	Mr DMJ Bennett QC, Solicitor-General for the Commonwealth with Ms K Eastman
Solicitor for the Intervener	Australian Government Solicitor
Date of Hearing:	7 June 2004
Date of Judgment:	25 June 2004