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High Court of Australia |
THE QUEEN v. ANDERSON; Ex parte IPEC-AIR PTY. LTD. [1965] HCA 27; (1965) 113 CLR 177
Aerial Navigation (Cth) - Customs (Cth) - Prerogative Writs - Constitutional
Law
(Cth) - Crown
High Court of Australia
Kitto(1), Taylor(2), Menzies(3), Windeyer(4) and Owen(2) JJ.
CATCHWORDS
Aerial Navigation (Cth) - Air Service Operations - Inter-State charter services - Licence therefor - Refused on ground unrelated to safety of operations - Permission to import aircraft for proposed service refused - Mandamus - Air Navigation Regulations (Cth), regs. 197 (1), 199 (2).*Customs (Cth) - Prohibited imports - Prohibition on importation of aircraft - Relaxation of prohibition with permission of Director-General of Civil Aviation - Discretion of Director-General to relax prohibition - Whether mandamus lies - Exercise of discretion - Matters relevant thereto - Governmental policy - Customs (Prohibited Imports) Regulations (Cth), reg. 4 (2), 3rd Schedule, item 1**.
Prerogative Writs - Mandamus - Public official - Order to perform duty - Circumstances in &which mandamus will issue.
Constitutional Law (Cth) - Freedom of inter-State trade - Aircraft required for operation of inter-State air service - Refusal of permission to import aircraft - Whether freedom impaired - The Constitution (63 & 64 Vict. c. 12), s. 92.
Crown - Departmental Head - Discretion given by statute - Governmental policy Relevance to exercise of discretion - Relation between Minister and Departmental Head.
HEARING
Sydney, 1965, March 25, 26, 29; May 28. 28:5:1965DECISION
May 28.3. The prosecutor applied to the Director-General for a charter licence "to carry freight by means of its own aircraft between Sydney, Melbourne, Brisbane, Adelaide, Perth and Launceston". The prosecutor proposed to conduct its services (being, as will be observed, "inter-State services" in the sense of the Regulations) with five Douglas DC.4 freight aircraft which it was in a position to obtain if the Director-General would grant permission under the Customs (Prohibited Imports) Regulations for their importation into Australia. It is common ground that the prosecutor established to the Director-General's satisfaction that subject to obtaining the aircraft referred to it was capable of complying during the currency of the licence with the provisions of the Regulations relating to the safety of the operations, and also with any direction or order given under the Regulations and relating to the safety of the operations. (at p186)
4. The application for the charter licence and the application for permission to import the aircraft were made in the one document, dated 2nd July 1964. Not until 22nd December 1964 was a decision given on either application. On that date both applications were refused. The prosecutor now applies to this Court for a writ of mandamus commanding the Director-General to issue the licence or, alternatively, commanding him to consider and determine the application for the licence according to law. (at p186)
5. In his letter refusing the application for a charter licence the Director-General said that it appeared to him that the prosecutor would not be in a position to provide the necessary aircraft to operate the services to which the application related. "On this basis", the letter said, "I feel I must refuse the application for a charter licence". The letter then added: "If you have any further information to place before me as to the aircraft that would be available to (the prosecutor) to operate the services I would at all times be prepared to reconsider the application". (at p186)
6. In the five months that elapsed before the Director-General gave his decision it seems that the passenger airlines operating express freight services in Australia bought several of the aircraft which the prosecutor intended to buy, and options which the prosecutor had on some aircraft were allowed to lapse. Moreover the required number of DC. 4 freight aircraft were not, and apparently have not become, available for purchase in Australia. But the Director-General's stated opinion that the prosecutor would not be in a position to provide the necessary aircraft to operate the proposed services is not supported by any evidence to suggest that that number of DC.4 freight aircraft could not be obtained abroad. Indeed it seems obvious that there was no other ground for the opinion than the fact that the Director-General himself would not give the permission necessary for importation. As late as 16th March 1965, it was sworn by the prosecutor's managing director that he had made personal inquiries overseas and had ascertained that there were (then) available for purchase by the prosecutor at least five DC. 4 aircraft suitable for the inter-State carriage of freight. But with this evidence before him, the Director-General made no move to re-open the matter. He simply ignored the information. The statement in his letter, that he would be prepared at all times to reconsider the application for a charter licence if the prosecutor should have any further information to place before him as to the aircraft that would be available, plainly had no practical value except as an assurance that if at any future time the Government should instruct him to give permission for the importation of suitable aircraft he would reconsider the application for a charter licence. (at p187)
7. It must be kept steadily in mind that under reg. 199 (2) the Director-General was under a positive duty to issue the charter licence unless the applicant had not established that he was capable of complying during the currency of the licence with certain provisions relating to the safety of the operations. The provisions referred to were those of the Regulations, or of any direction or order given or made under the Regulations. Only by the imposition of that positive duty were the Regulations as to charter licences saved from invalidity under s. 92 of the Constitution. The evidence shows that the Director-General and his Department investigated thoroughly every aspect of the prosecutor's applications and that he was satisfied on every point; but that in obedience to instructions from the Government he was not prepared to give permission for the importation of the necessary aircraft. He did not rest his refusal of the charter licence on any consideration related to the safety of the operations. He did not specify any provision of the Regulations, or indicate any existing or anticipated future provision of any direction or order under the Regulations, relating to the safety of the operations, with which he was not satisfied that the prosecutor would be capable of complying if DC. 4 freight aircraft should be or become available to it. He was of course well aware that any such aircraft, and their use in the manner appropriate to the proposed services, would always be covered by current certificates of type approval under Div. 2 of Pt IV of the Regulations and certificates of airworthiness under Div. 3 of that Part, that they would in all respects comply with the Regulations, that maintenance etc. would always have to be carried out by persons approved under Div. 6, and that the crews would be licensed under Pt V. Moreover, the inference is, I think, inescapable that he was satisfied of the suitability in all respects of Douglas DC. 4 freight aircraft. The evidence, and particularly the Director-General's own statements, make it clear that his refusal of the charter licence had nothing whatever to do with any question of safety, and that in truth the prosecutor has established to the satisfaction of the Director-General that it is capable of complying with any and all provisions relating to the safety of the proposed operations. I read the Director-General's letter refusing the charter licence as acknowledging, even if unintentionally, that it was in spite of, and not because of, the concluding words of reg. 199 (2) that the charter licence was being refused. I think the truth of the matter should be faced: the refusal of the licence was based upon nothing whatever but a policy against allowing anyone to participate in the relevant form of inter-State trade other than those already engaged in it. However wise and well-grounded in reason that policy may be, if the Regulations on their true construction authorize a refusal so based I should find great difficulty in avoiding the conclusion that reg. 197, in so far as it requires a charter licence for charter operations in inter-State air navigation, is invalid as being in conflict with s. 92 of the Constitution. In my opinion, however, such a refusal is contrary to the direct command of reg. 199 (2). (at p188)
8. I regard this as a clear case for a writ of mandamus; and since on the
view I take of the facts the Director-General is now under
an absolute duty to
issue a charter licence, a duty which is unqualified by any discretionary
judgment still remaining to be exercised,
I am of opinion that the tenor of
the writ should be to command that that duty be performed.
No. 11 of 1965. (at p188)
9. In this case Ipec-Air Pty. Limited seeks an order absolute for mandamus
directed to the Director-General of Civil Aviation in
respect of an
application which has been made to him for a permission to import aircraft.
The Customs (Prohibited Imports) Regulations
prohibit the importation of
aircraft into Australia unless the importer produces to the Collector the
permission in writing of the
Director-General of Civil Aviation to import the
aircraft: see reg. 4 (2) and the first item in the Third Schedule. The
applicant
requested the Director-General's permission in writing to import
five Douglas DC.4 freight aircraft with which it might operate,
under a
charter licence under the Air Navigation Regulations, to carry freight between
cities in six States of the Commonwealth.
This permission the Director-General
refused to give. The mandamus that is sought is to command him to grant the
permission, or alternatively
to consider and determine the application for the
permission according to law. (at p188)
10. Neither in the Regulations nor elsewhere is there to be found any express provision as to the principles which the Director-General is to observe, or the matters which he is to take into consideration, when deciding whether to grant or to refuse a permission to import aircraft. But from the fact that he is designated by the title of his office the intention appears, as it seems to me, that the power of lifting the general prohibition is not given him for his own benefit or otherwise than for purposes relevant to his office. It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself: Sharp v. Wakefield (1891) AC 173, at p 179 . The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed. Even then a court does not direct that the discretion be exercised in a particular manner not expressly required by law, but confines itself to commanding the officer by writ of mandamus to perform his duty by exercising the discretion according to law: Cuming Campbell Investments Pty. Ltd. v. Collector of Imposts [1938] HCA 53; (1938) 60 CLR 741, at p 750, 751, 755, 758 . A case for the granting of mandamus on this principle exists where the officer has taken into account matters "absolutely apart from the matters which by law ought to be taken into consideration": Reg. v. Cotham (1898) 1 QB 802, at p 806 ; Randall v. Northcote Corporation [1910] HCA 25; (1910) 11 CLR 100, at pp 109, 110 , or has acted for a purpose other than that for which the discretion exists: Water Conservation and Irrigation Commission v. Browning [1947] HCA 21; (1947) 74 CLR 492, at pp 496, 498, 499, 500, 504 , or has accepted another's direction as to the way in which the discretion should be exercised: R. v. Stepney Corporation (1902) 1 KB 317 ; Simms Motor Units Ltd. v. Minister of Labour and National Service (1946) 2 ALL ER 201 , cf. Evans v. Donaldson [1909] HCA 46; (1909) 9 CLR 140 . (at p189)
11. It should be said at once that the integrity of the Director-General is not impugned in this case in the least degree. The complaint that is made is that honestly, but nevertheless contrary to the requirement of the law, he has refused the desired permission otherwise than by a due exercise of his discretion. The argument we have heard has touched upon three questions: first, did the Director-General in truth leave the decision to the Government instead of making it himself; secondly, if he made it himself but in making it he was influenced by a view expressed to him by the Government as to its policy in relation to the particular application, was his decision invalid as having been reached by reference to an extraneous and therefore inadmissible consideration; and thirdly, was the decision, whether it should be regarded as the Government's or the Director-General's, made for a purpose which should be held inadmissible by reason of the provisions of s. 92 of the Constitution. (at p190)
12. The application for permission to import the five aircraft was dated 2nd July 1964 and was accompanied by an application for a charter licence under the Air Navigation Regulations. Both applications were supported by a quantity of information, and still more information was supplied to the Director-General in response to inquiries contained in letters of which the latest was dated 20th August 1964. Further correspondence and meetings ensued. Early in September 1964 the Director-General in the course of a conversation expressed himself in clear terms as satisfied with the results of the investigations that had been made by his Department. He added that his Department had completed its investigations, that the applicant had satisfied the Department's requirements as to its capability of complying with the provisions of the Air Navigation Regulations relating to safety, etc., and that his officers had commented favourably on the applicant's financial stability, its operating efficiency and its reputation with shippers. He then said that the matter from this point on became one for the Minister, and probably for the Cabinet, for decision on political grounds. (The fact that he made these statements I take from a letter written by the applicant to the Director-General and dated 1st December 1964, which I shall mention again. The statements of fact in the letter are verified by an affidavit in these proceedings, and remain uncontradicted and unqualified). In the same conversation, according to the evidence, the Director-General, being asked what prevented him from granting the applications, said: "It has been suggested that you will take freight business from Ansett-A.N.A. and T.A.A., and also that you might carry passengers on any aircraft you are permitted to import. This is a political matter, and could conflict with the Government's two-airline policy". (at p190)
13. Towards the end of October 1964 he said in answer to a telephone inquiry: "It is no use ringing me about this matter. The matter is out of my hands. If you want any information you had better contact the Minister". (at p190)
14. On 1st December 1964 the applicant wrote again to the Director-General asserting (and the statements are now verified by affidavit) that the passenger airlines operating express freight services competitive with those proposed by the applicant had, with the Director-General's approval, imported several of the aircraft which the applicant had intended to buy. The letter complained bitterly of the delay in dealing with its applications and threatened legal action. This elicited a reply by telegram. The relevant passages are these: "Only the Government can make decisions on those matters of Government policy which are relevant to my consideration of your applications. The Minister has asked me to tell you that he submitted the matter to the Government shortly after receiving (certain) legal advice . . . and he is hopeful that the Government views will be made known at an early date. Until this is done it is not possible for me as Director-General to give an immediate decision on your applications . . .. The applications will be considered on their merits as soon as I am in a position to consider all matters which are properly held to be considered (sic) in deciding whether or not to grant your applications". (at p191)
15. On the concluding sentence of this telegram the comment must be made that the Director-General had already shown that as regards everything that he or his Department had thought relevant conclusions favourable to the granting of the application had been reached, with the exception only of the matter or matters upon which he had asked for the Government's decision. At this stage, therefore, the position plainly was that if he should refuse the desired permission after receiving the Government's decision he would be doing so only because that decision was unfavourable to the applicant and in his mind it should be allowed to outweigh all else. (at p191)
16. The final answer to the applicant came in a letter dated 22nd December 1964. The letter began by reciting that the Director-General had considered it "necessary" to obtain the views of the Government on its civil aviation policies before deciding the application. Then it proceeded in these terms: "My Minister has informed me, and he has asked me to let you know, that the Government has now considered the policy matters mentioned in my telegram to you dated 7th December. The Government does not favour the importation of the five DC.4 aircraft applied for by IPEC-Air Pty. Ltd. and of another three DC.4 aircraft applied for by another road express company. The Government is of opinion that the provision of further facilities for the operation of trunk route freight services by air at the present time would not be justified on economic grounds." (at p191)
17. "I have carefully considered all aspects of your Company's application raised by your correspondence and by the discussions that have taken place on your Company's application, and I have also had regard to the Government's policy views as expressed above. After carefully considering all these matters I have come to the conclusion that your Company's application should be refused and I accordingly refuse the application". (at p192)
18. If this letter were to be read in isolation there would be no ground for concluding, though there would be ample ground for suspecting, that the Government's decision had been the only consideration operating against the granting of the application. But when the letter is read in the light of the Director-General's oral statements, his telegram and the letters to which I have referred, it becomes to my mind clear beyond doubt that "all these matters" which he had "carefully considered" consisted only of matters favourable to the application and the fact of the Government's decision against it, and that the refusal of the application was simply and solely a reflection of the decision of the Government. This means that the refusal, though given no doubt in a genuine belief that obedience to duty required it, was in truth not a refusal by the person to whom the Customs (Prohibited Imports) Regulations committed the power of decision. It is worth observing that the relevant item of the Third Schedule stands in marked contrast with other items (see 8A and 24) in that it selects as the respository of the power to permit importation, not the Minister who is the political head of a Department, but the permanent head of the Department. To hold valid a decision given at the political level instead of at the permanent administrative level would be to contradict the Regulations. The proper conclusion seems to me to be that the application which the Director-General purported to refuse still awaits a decision according to law - a decision which in truth is a decision of the person to whom alone the Regulations entrust the power and duty of deciding whether the general prohibition of importation should be lifted in the particular case. (at p192)
19. This conclusion makes it unnecessary to decide the second of the questions I have mentioned. It may be conceded that where the law confers a power of discretionary decision upon an officer of the civil service in his official capacity Government policy is not in every case an extraneous matter which he must put out of consideration. Indeed, Evatt J. thought that such a case existed in R. v. Mahony; Ex parte Johnson [1931] HCA 36; (1931) 46 CLR 131, at p 145 . I express no opinion as to whether the relevant provisions of the Customs (Prohibited Imports) Regulations provide another instance. Even if they do, the fact is that in dealing with the application in question in this case the Director-General did not arrive at a decision of his own after taking account of some matter of general Government policy. What he did was to seek from his Minister, and then automatically obey, an ad hoc pronouncement from the Government as to the direction in which he ought to decide the matter. That is a very different thing; and none the less so because the Government made its pronouncement in line with a general policy which it considered to be in the best interests of the country. (at p193)
20. The argument submitted for the applicant on the third question was, I think, misconceived. It is true that s. 92 of the Constitution frees inter-State trade from any restrictive or burdensome legal operation of executive action under laws as well as of laws which take effect independently of executive action. But in either case the operation which s. 92 precludes is an operation with reference to or in consequence of or restricting or burdening something which itself forms part of inter-State trade, commerce or intercourse or in itself supplies some element or attribute essential to that conception. "It will not be enough that it affects something which, because it is a sine qua non to the existence of some subject of the freedom which s. 92 guarantees, has a consequential effect on what might otherwise have been done in inter-State trade": Grannall v. Marrickvill Margarine Pty. Ltd. (1955) 93 CLR 55, at p 78 . The executive action complained of in the present case is a refusal to lift a prohibition upon the doing of something (importation) which is itself altogether apart from inter-State trade. Even if the executive action had been the imposition of a prohibition instead of a refusal to lift a prohibition, the case would have been concluded by the sentence I have quoted from the judgment in Grannall v. Marrickville Margarine Pty. Ltd. [1955] HCA 6; (1955) 93 CLR 55, at p 78 . The argument requires no other refutation than the reasoning of that case supplies. (at p193)
21. For the reasons given in reference to the first two questions, however, I am of opinion that there should be an order absolute for mandamus requiring the Director-General to consider the application for permission to import aircraft and to determine it according to law. (at p193)
TAYLOR and OWEN JJ.
Nos. 6 and 11 of 1965. (at p193)
2. On 2nd July 1964 Ipec-Air Pty. Limited (hereinafter referred to as the
prosecutor) made two applications to the respondent who
is the
Director-General of Civil Aviation. In the first place it sought the issue of
a charter licence pursuant to reg. 199 (2) of
the Air Navigation Regulations
authorizing it "to carry freight by means of its own aircraft between Sydney,
Melbourne, Brisbane,
Adelaide, Perth and Launceston". Secondly, it sought the
permission in writing of the respondent pursuant to reg. 4 (2) and the Third
Schedule to the Customs (Prohibited Imports) Regulations "to import suitable
aircraft with which it may operate under such licence
viz. five (5) Douglas
DC4 freight aircraft". This second application was refused by the
Director-General after consideration of the
Commonwealth Government's policy
in relation to civil aviation within the Commonwealth and, in particular, the
opinion of the Government
"that the provision of further facilities for the
operation of trunk route freight services by air at the present time would not
be justified on economic grounds". In answer to an enquiry by the prosecutor's
legal advisers for clarification of the quoted phrase
the respondent replied
as follows: "The word 'facilities' in paragraph 2 of my earlier letter was
used in a broad sense to cover
the whole complex of airline organization,
aircraft and freight handling equipment which the proposed operation between
capital cities
of a fleet of freighter aircraft would involve. (at p194)
3. The Government's view is that, having regard to the existing capacity of the air transport industry as a whole to handle air freight, the provision at the present time of the further facilities for the operation of trunk route freight services by air as contemplated by your client's application is not warranted and would be likely to be detrimental to the economic stability of the industry as a whole and, in consequence, to endanger the maintenance of the high standards of safety and efficiency of air transport operations which have been built up over the years". The prosecutor now seeks the issue of a writ of mandamus addressed to the respondent directing him to grant permission in writing for it to import aircraft as specified in its application, or, alternatively, directing him to consider and determine its application according to law. (at p194)
4. The first application was also refused. It appeared - and the evidence in the case shows - that suitable aircraft for the prosecutor's proposed purposes were not available in Australia so that unless the prosecutor was free to import such aircraft it would be unable to equip itself "to carry freight by means of its own aircraft" between the specified cities. In these circumstances the first application was refused on the ground that the prosecutor would "not be in a position to provide the necessary aircraft to operate the services to which the application relates". Following this refusal the prosecutor obtained an order nisi directed to the respondent calling upon him to show cause why he should not be directed to issue a charter licence to the prosecutor in accordance with its application, or, alternatively, why he should not be directed to consider and determine that application according to law. (at p195)
5. Under reg. 199 (2) an applicant for a charter licence for a proposed inter-State service is entitled to the issue of such a licence unless he has not complied with, or not established that he is capable of complying during the currency of the licence, with the provisions of the Regulations, or of any direction or order made under the Regulations, relating to the safety of the operations. Accordingly it is clear that the ground upon which the application for permission to import aircraft was refused would not, simpliciter, constitute a valid ground for the refusal of a charter licence. That is to say, if an application for a charter licence for such a service was refused by the Director-General directly upon the ground that the provision of a further freight carrying aerial service would be detrimental to the industry as a whole it would clearly appear that in refusing it he had taken into account considerations extraneous to his functions under reg. 199 (2). But the application for a charter licence was not refused on this ground; it was refused because it was apparent that in the circumstances as they existed the prosecutor would not be able to equip itself to operate the service under a charter licence if it were granted such a licence. (at p195)
6. The two applications to this Court were heard together and the prosecutor sought to show by evidence that the fact was and that it had satisfied the Director-General that it had complied with and was capable of complying with the conditions expressed in reg. 199 (2) and that, in substance, therefore, its application for a charter licence failed only because the Director-General had refused to grant his permission pursuant to the Customs (Prohibited Imports) Regulations for the importation of the aircraft necessary for the operation of the proposed service. Then, it is said, the grounds upon which this refusal was based showed that the Director-General's discretion was exercised simply for the purpose of excluding the prosecutor from inter-State trade in the field of aerial transport. It was contended that this constituted an infringement of s. 92 of the Constitution and, therefore, that the Director-General's discretion had been exercised upon an inadmissible ground and had miscarried. (at p195)
7. In these circumstances, it seems that our enquiry in the matter must commence with consideration of the effect of reg. 4 (2) of the Customs (Prohibited Imports) Regulations and the character of the function committed to the Director-General by Item 1 of the Third Schedule to those Regulations. In terms reg. 4 (2) provides that the importation into Australia of the goods specified in the second column of the Third Schedule to those Regulations is prohibited unless the conditions, restrictions or requirements specified in the third column of that Schedule opposite to the description of the goods are complied with. Item 1 of the Third Schedule is "Aircraft, airframes and aircraft engines" and the condition specified is expressed in the following words: "The importer shall produce to the Collector the permission in writing of the Director-General of Civil Aviation to import the goods". A regulation in such a form has long been accepted as a permissible exercise of the statutory power conferred by s. 52 of the Customs Act 1901-1963 (Radio Corporation Pty. Ltd. v. The Commonwealth [1938] HCA 9; (1938) 59 CLR 170 ; Poole v. Wah Min Chan (1947) 75 CLR 218 ; and Reg. v. McLennan; Ex parte Carr [1952] HCA 39; (1952) 86 CLR 46 ). However it should be made clear at once that it is not contended that reg. 4 (2) operating in relation to Item 1 of the Third Schedule infringes s. 92 of the Constitution. It is true that the prohibition therby erected may have a very substantial consequence in relation to inter-State trade, in common, of course, with other forms of trade both intra-State and overseas, but it is beyond doubt that it does not have any legal operation in relation to any activity which itself forms part of the concept of trade, commerce and intercourse among the States (Wragg v. State of New South Wales [1953] HCA 34; (1953) 88 CLR 353, at pp 386, 387, 396, 398 ; and Grannall v. Marrickville Margarine Pty. Ltd. [1955] HCA 6; (1955) 93 CLR 55, at pp 71, 72, 78, 79 ). Nor does it operate "in reference to or in consequence of any matter or thing itself forming part of trade, commerce or intercourse among the States" (per Dixon C.J. in Wragg's Case (1953) 88 CLR, at p 387 ). Again it is not possible to impugn the regulation by an investigation of the reasons for its enactment or the motives which called it forth. As was said in Grannall's Case [1955] HCA 6; (1955) 93 CLR 55 : "It is said that, because the purpose, motive or object with which the present legislation was passed is or may be that margarine shall not be sold to consumers who otherwise might buy butter and because such consumers might buy in inter-State trade or from or through wholesalers or retailers who buy margarine in inter-State trade: it necessarily follows that there is a direct interference with inter-State trade. This involves a confusion between the operation of the law and motives of the legislature. If the State legislature enacts what is prima facie within its power, why should it matter that the legislators advert to a particular consequence and desire it to occur? Does it matter that but for such advertence or desire the legislation would not be passed? If not, what difference does it make if the further inference is warranted that it was only in order to achieve the fulfilment of this desire that the statute was passed? Surely the answer to all three of these successive questions is, no. Nor can it matter whether the purpose or motive is inferred from circumstance or from the statute or, indeed, is stated therein in terms" (1955) 93 CLR, at pp 78, 79 . At an earlier stage the Judicial Committee speaking of misconceptions which might arise from the use of expressions appearing in earlier cases involving s. 92 said: "in whatever sense the word 'object' or 'intention' may be used in reference to a Minister exercising a statutory power, in relation to an Act of Parliament it can be ascertained in one way only, which can best be stated in the words of Lord Watson in Salomon v. Salomon & Co. (1897) AC 22, at p 38 : 'In a Court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication'. The same idea is felicitously expressed in an opinion of the English law officers Sir Roundell Palmer and Sir Robert Collier cited by Isaacs J. in James v. Cowan (1930) 43 CLR, at p 409 : 'It must be presumed that a legislative body intends that which is the necessary effect of its enactments; the object, the purpose, and the intention of the enactment, is the same'. The same learned Judge adds: 'By the "necessary effect", it needs scarcely be said, those learned jurists meant the necessary legal effect, not the ulterior effect economically or socially'." (The Commonwealth v. Bank of N.S.W. (1950) AC 235, at p 307; (1949) 79 CLR 497, at pp 636, 637 ). (at p197)
8. But as already appears no attempt was made on behalf of the prosecutor to impugn reg. 4 (2) on the ground that its provisions are obnoxious to s. 92. It did, however, advance the contention that the regulation was not authorized by the provisions of the Customs Act but in view of existing authority it offered no argument on that point. (at p197)
9. Accepting the regulation as a valid legislative provision the initial question which arises is concerned with the character of the function which by virtue of the language of the condition specified in the Third Schedule must be taken to have been entrusted to the Director-General. In particular, the question is, does the language in which the condition is expressed create a duty the performance of which may be enforced by mandamus? No right, conditional or otherwise, to the Director-General's written permission is expressly given by the regulations and the question of the existence of a duty, and a corresponding legal right, capable of enforcement by mandamus, is left to be resolved as a matter of implication. Whether or not any implication favourable to the prosecutor should be made must, of course, be considered in the light of the fact that reg. 4 (2) and the Third Schedule is found in subordinate legislation which places no limits upon the considerations which are to guide the Director-General in the performance of the function entrusted to him and which is of a type which gives no clue to any intended limitations. It is legislation promulgated under the Customs Act and is not concerned with any particular subject-matter capable of revealing the scope and object of the function. It may, of course, be that some clue as to the appropriate considerations may be found in the fact that the Director-General is the permanent head of a department of the Commonwealth established for the purpose of exercising a large measure of control in relation to civil aviation of all kinds within the Commonwealth - whether it be inter-State, intra-State, or overseas - and that the function is committed to him in that capacity. But whatever clue this circumstance may afford is vague and indeterminate and can indicate only that he is invested with a discretion which is to be exercised in accordance with his own views as to what will best serve the interests of civil aviation within the Commonwealth. It should also be borne in mind that his function is not a function to prohibit; his authority extends only to the relaxation of a prohibition erected by the Regulations and which, itself, is not in question. The situation is, we think, not unlike that which arose for consideration in Metropolitan Meat Industry Board v. Finlayson [1916] HCA 77; (1916) 22 CLR 340 where this Court was concerned to enquire whether mandamus would lie to compel the performance of a duty said to arise by virtue of the provisions of s. 19 of the Meat Industry Act, 1915 (N.S.W.). That section was in the following terms: "After this Act comes into force - [1916] HCA 77; (1916) 22 CLR 340 No person shall, except with the consent of and under the conditions prescribed by the" Metropolitan Meat Industry "Board, within the metropolitan abattoir area, slaughter any cattle or dress any carcase for human consumption, except at a public abattoir". Griffith C.J. (with whom Barton J. agreed) was of the opinion that this section did not create any right enforceable by mandamus where consent had been refused for undisclosed reasons. He said: "I asked in vain during the argument for some indication of the matters to which the Board were required to direct their minds in considering such an application, but received no answer except that the Act contemplated that private slaughtering establishments should continue to be carried on as before, and that consent should therefore always be given unless some special reason should be shown for refusing it. It was therefore, it was said, the duty of the Board to indicate to the applicant the reasons which they thought to exist. The answer to this argument is that the Act expressly negatives it. It says that what has hitherto been conditionally lawful shall in future be unlawful except on one condition. In my opinion the discretion of the Board is unfettered. If they think, for instance, that it is in the public interest to confine all slaughtering to the Government abattoirs I do not think that any Court can review their opinion" (1916) 22 CLR, at p 344 . Isaacs and Rich JJ. were of the same opinion and observed that: "The only duty the Board has . . . is to receive and consider any application for consent, to honestly deal with it, and to give or refuse its consent as it thinks the public interest in the performance of its mandate in s. 13 requires. The main and overriding consideration is that mandate of s. 13; if consistently with its own view of discharging that great function it thinks, for whatever reasons commend themselves to the Board, that the public welfare will be better served by granting or by refusing its consent, it should act accordingly. No Court can prescribe any narrower or stricter limits of duty" (1916) 22 CLR, at p 350 . In our view, much the same observations may be made concerning reg. 4 (2) and the language of the relevant condition set out in the Third Schedule. Whether permission is to be given or not is a matter left to the discretion of the Director-General. His discretion, no doubt, is intended to be exercised upon broad considerations relating to civil aviation in the Commonwealth but this circumstance does not support any implication that there is reposed in him any public duty, or any legal right created - other than a right to have an application for permission honestly considered - which is capable of enforcement by mandamus. (at p199)
10. Nevertheless, the prosecutor maintains that if the Director-General's permission was refused in order to prevent the prosecutor from engaging in inter-State aerial transport operations mandamus will go to compel reconsideration of its application. This contention is based upon the proposition that such a ground of refusal would be obnoxious to the provisions of s. 92. The argument of the prosecutor failed to make clear how this proposition can be supported or, for that matter, how it can be asserted if there exists no legal right in it capable of enforcement by mandamus. But however this may be two particular answers may be made to the contention. The first is that in such a case the inability of the applicant to initiate an inter-State aerial transport service is neither produced by nor the result of the Director-General's refusal. Its inability exists because of the provisions of reg. 4 (2) and the consequential impediment which that regulation creates in the way of a person proposing to conduct an inter-State aerial service is neither intensified nor altered in character by the Director-General's refusal. Before the refusal a person in the position of the prosecutor could not equip himself to carry on the proposed service and as a consequence could not initiate such a service. How then can it be said that the Director-General's refusal to give his written permission places any further or other impediment in his way so as to infringe s. 92? The clear answer to this question must be that it does not. The inability of the prosecutor to engage in the form of inter-State trade which it wishes to undertake is a consequence of the prohibition erected by reg. 4 (2) which, admittedly, is not obnoxious to s. 92, and it no less remains a consequence of that provision notwithstanding the refusal of the Director-General to grant his permission in writing for the importation of the aircraft which the prosecutor wishes to import. It should perhaps be added that while we think that the evidence shows that in considering the prosecutor's application for permission to import aircraft the Director-General took into account the policy laid down by the Government, we are unable to accept the view that this was not a matter proper to be considered by him nor, with respect, do we agree with the conclusion reached by Kitto J. that the refusal to grant the permission sought was, in truth, not the decision of the Director-General but that of the Government. (at p200)
11. The second answer is to be found in the reasons given by the Director-General for refusing to give his written permission for the importation of those aircraft. An examination of these reasons does not disclose that his refusal was, as alleged, activated or motivated by considerations relating to inter-State trade or for the purpose of excluding the prosecutor from the form of inter-State trade in which it wishes to engage. It is true, of course, that the prosecutor's application was for permission to import aircraft so that it might employ them in inter-State trade. But to refuse an application made with this end in view does not mean that the refusal was for the purpose of preventing the prosecutor from engaging in inter-State trade. Indeed, so much is conceded. But what is asserted is that the ground given for his refusal indicated that it was for such a purpose and that, consistently with the provisions of s. 92, he should not have had regard to the matters to which he gave consideration. However, examination of the reasons given by the Director-General for his refusal shows that this was not so. His refusal, as already appears, was based upon considerations affecting the civil aviation industry generally within the Commonwealth including the preservation of its economic stability and of high standards of safety and efficiency. We are, it should be added, not sitting as a Court of Appeal from the Director-General and it is no part of our province to form or express any view on the merits of the prosecutor's application or upon the weight of the reasons given for its refusal. (at p201)
12. There remains the question as to the refusal by the Director-General of the prosecutor's application for a charter licence. It was refused because the prosecutor was not and would not be in a position to provide the necessary aircraft to operate the proposed service and this, it is said, was not a valid ground of refusal. But the Director-General seems to have formed the view that the application was, in effect, premature. Whether or not this was a valid ground of refusal is, in the circumstances of the case, not of much consequence for it appears clearly enough that an order requiring the Director-General to issue a charter licence, or to consider the application according to law would, in view of the prosecutor's inability to obtain aircraft for its proposed service, be, for all practical purposes, futile. In these circumstances we should in the exercise of our discretion refuse mandamus (See Reg. v. Heathcote (1738) 10 Mod 48, at p 56 (88 ER 620, at p 623) ; R. v. The Bishop of Exeter (1802) 2 East 462, at p 466 (102 ER 445, at p 447) ; and Reg. v. The Trustees and Managers of the Northwich Savings' Bank [1839] EngR 454; (1839) 9 Ad & E 729 (112 ER 1388) ), particularly in view of the declared willingness of the Director-General to reconsider the prosecutor's application in the event of it placing before him "any further information . . . as to the aircraft that would be available" to the prosecutor to operate its proposed service. (at p201)
MENZIES J.
No. 6 of 1965. (at p201)
2. I agree in the judgment of Kitto J.
No. 11 of 1965. (at p201)
3. I agree in the judgment of Kitto J. (at p201)
4. When a discretion to give permission for the importation of some article has been given to the head of a Commonwealth department, it would, I think, be wrong to deny that the officer who occupies the position could take government policy into consideration in deciding whether to grant or to refuse permission. (at p202)
5. There is, nevertheless, a significant difference between a discretion given to a minister and one given to a departmental head. When the latter is nominated, he must arrive at his own decision upon the merits of the application and must not merely express a decision made by the government. The position in which such an officer is put is not an easy one, but the sound theory behind conferring a discretion upon a departmental head rather than his minister is that government policy should not outweigh every other consideration. A sound governmental tradition of respect for those who shoulder the responsibilities of their office in making unwelcome decisions makes the choice of a departmental head, rather than his minister, as the one to exercise a discretion conferred by the legislature a real and important distinction. There are, it seems to me, sound grounds for treating a decision to be made at departmental level as something substantially different from a decision to be made at the political level. (at p202)
6. Here, the circumstances set out by Kitto J. in his judgment do lead me to the conclusion that in this instance the decision to refuse permission to import the aircraft was not that of the Director-General of Civil Aviation; it was the refusal of the Government. Instead of the decision being made at the departmental level, it was made at the political level. (at p202)
7. I therefore agree with the order which Kitto J. proposes. (at p202)
WINDEYER J.
No. 6 of 1965. (at p202)
2. The prosecutor established matters that under the Regulations showed it to
be a fit person to have a charter licence. The Director-General
nevertheless
refused its application for a licence. This refusal, which was not
communicated until after what seems an inordinate
delay, was put upon the
ground that the prosecutor would not be in a position to provide the aircraft
necessary to operate, as the
phrase is, the proposed air service, meaning that
it had no aircraft of the type proposed to be used, and it seemed that it
would
not be able to obtain any. The reason why it would not be able to do so
was because the Government desired, on economic grounds,
to restrict the
number of airlines, and therefore the Director-General, acting under the
Customs (Prohibited Imports) Regulations,
would not issue to the prosecutor a
permit to import aircraft it wished to import. The Government may use any
means that the law
allows to give effect to its policy. The Court is concerned
only with the lawfulness of its action, not at all with the wisdom of
its
policies. But I am unable to see how the fact that the Director-General could
render a licence of no avail to the prosecutor
justifies his refusing to grant
the licence. The grounds, the only grounds, on which he can lawfully refuse a
licence such as was
sought are set out in the Regulations. A difficulty in
obtaining a particular aircraft, or the absence of an import permit, is not
as
I read the Regulations one of those grounds. (at p203)
3. The prosecutor desires to have a licence notwithstanding that it may prove
of no use. That is a matter for it. It may be that
it hopes that it will be
able to obtain suitable aircraft in Australia. The Director-General could not
lawfully impede its efforts
to do so. That no suitable aircraft are at present
available to be bought in Australia is not a decisive consideration. It may be
that before the expiration of the period of a licence the prosecutor will be
able to buy or by some other permissible arrangement
gain the use of suitable
aircraft in Australia. The prosecutor may well think a licence necessary to
warrant its expenditure of money
on obtaining aircraft. It may think, and
apparently does think, that having a licence may aid it in efforts to persuade
the authorities
to relax in its favour the prohibition against importing them.
It may hope that possession of a licence would give it an advantage
over
others if there should be a change in Government policy. Whatever its motives
for wishing to have a licence it seems to me that
on the evidence it
established its right to one, the only ground for refusal being unsound in
law. Mandamus should therefore, I consider,
go in the form proposed by my
brother Kitto.
No. 11 of 1965. (at p203)
4. The decisions of this Court in Radio Corporation Pty. Ltd. v. The
Commonwealth [1938] HCA 9; (1938) 59 CLR 170 and Poole v.
Wah Min Chan [1947] HCA 37; (1947)
75 CLR 218
establish the constitutional validity of the Customs (Prohibited Imports)
Regulations.
As a result "aircraft,
airframes
and aircraft engines" may not be
imported into Australia except on a condition, namely that "the
importer shall
produce
to the Collector
of Customs the permission in writing of the
Director-General of Civil Aviation to import
the goods". (at p203)
5. In this case the Director-General was asked by the prosecutor to furnish it with his permission in writing to import certain aircraft which it wanted for the conduct of the inter-State air-freight service that it proposed to set up. This permission was refused. It appears from the correspondence that the reason for the refusal was that it was against the policy of the Commonwealth Government (based apparently on economic considerations relating to air transport generally) that there should be another inter-State freight-carrying air service in addition to the existing lines. (at p204)
6. The validity of the Director-General's refusal to provide the prosecutor with the permit for importation that it sought is now challenged on two main grounds. One is that it amounts to, or involves, a contravention of s. 92 of the Constitution: the other is that the Director-General ought not to have refused because of mere subservience to the policy of the Government. In the argument for the prosecutor the two contentions overlapped. But it is convenient to consider them separately. (at p204)
7. A statute which conferred power upon the Executive to deny to a person lawfully engaged in inter-State trade things requisite and necessary for carrying on his trade might, I do not doubt, in some circumstances contravene s. 92. And I do not say that a law which provided, whether absolutely or subject to relaxation, that certain goods might not be brought into Australia or be brought into existence in Australia could never be within the reach of s. 92. But, having regard to what has been said in judgments of this Court in other cases, I have come to the conclusion that the matters on which the prosecutor relied in this case are too remote in their relation to inter-State trade to be an invasion of the freedom which s. 92 assures. (at p204)
8. Then it is said that the Director-General refused a permit for importation simply because the Minister made known to him that it would be against Government policy to allow the prosecutor to import aircraft for the purpose it proposed. Whether or not the evidence shows this convincingly, I shall assume it to be so. I make this assumption the more readily because, with all respect for those who take a different view, I think that the only consideration by which the Director-General could properly have been guided was the policy of the Government. He is by the Public Service Act made the permanent head of the Department of Civil Aviation, a duly constituted Department of State. The responsible Minister is the Minister for Civil Aviation. The Director-General's function in giving permission, pursuant to the Customs Regulations, for the importation of aircraft is an administrative one which he performs by virtue of his office. He is not like a person charged with a duty of determining some question of fact or aperson required himself to exercise a discretion according to defined criteria or guided by defined considerations. Of person in that position it is true to say that, as Rich J. expressed it, "if they have not understood the section, or have not considered the evidence, or have allowed considerations foreign to the question before them to intrude and distract them from the duty confided to them, mandamus will go to compel them to hear and determine the matter before them according to law": Ex parte Falkiner (1929) ALR 303, at p 305 , repeated in Cuming Campbell Investments Pty. Ltd. v. Collector of Imposts (Vict.) (1938) 60 CLR, at p 751 . The following cases provide illustrations, apposite here, of the general principle and of its limitations: Victorian Railways Commissioners v. McCartney and Nicholson [1935] HCA 28; (1935) 52 CLR 383 ; Andrews v. Diprose [1937] HCA 70; (1937) 58 CLR 299 . In this case no grounds for the granting of permission to import aircraft are expressed in the Customs Act or the Regulations or in any other statutory instrument. And none are implicit, except that, adopting the words of Latham C.J., the power to relax the prohibition "must be exercised for the purpose of attaining the object and securing the purpose of the Regulations, such object and purpose being ascertained by an examination of the terms of the Regulations": Shrimpton v. The Commonwealth (1945) 69 CLR 613, at p 620 . In such circumstances it is never easy to enumerate the considerations that are relevant to the purpose for which the power is conferred: see Swan Hill Corporation v. Bradbury [1937] HCA 15; (1937) 56 CLR 746 , per Dixon J. (1937) 56 CLR, at p 758 . But, as Dixon J. said in Water Conservation and Irrigation Commission (N.S.W.) v. Browning [1947] HCA 21; (1947) 74 CLR 492, at p 505 , there must be some warrant in the provisions, the nature or the subject-matter of the statute before it can be said of a particular consideration that has been acted upon that it is extraneous to the power. And, if some matter may properly be considered, it is, I think, scarcely possible for a court ever to say that too much weight was given to it or that it ought not to have been allowed to outweigh other considerations. That, however, is really immaterial in the view I take. That view is, as I have said, that the Director-General must have regard to the policy of the Government and must exercise his functions accordingly. In considering whether to allow aircraft to be imported it is not only the quality and characteristics of particular aircraft that are in question. The Department of Civil Aviation is concerned with more things than ensuring the airworthiness of aircraft. And the Parliament can if it wishes use its constitutional power of customs control of exports and imports to enable the Executive to pursue economic policies that it considers conduce to the welfare of the Commonwealth. That, among other things, is what as I understand the matter the Customs Regulations, made pursuant to the authority of Parliament, do. The Director-General must of course act within the law, that is he must not act corruptly and he must disobey any direction that is contrary to law. But the only ground of unlawfulness suggested was a contravention of s. 92. And that was not in my view made out. (at p206)
9. The constitutional responsibility for the decision to permit or refuse entry of a conditionally prohibited import, aircraft or whatever it be, rests ultimately in every case with some responsible Minister: see Reg. v. McLennan; Ex parte Carr [1952] HCA 39; (1952) 86 CLR 46 . Indeed, as I read the decisions of this Court, it is on this proposition that the constitutional validity of the Regulations dealing with prohibited imports and exports mainly depends. The Director-General is the officer whose written permission must be produced to the Customs. But in my opinion that does not mean that he is to grant or refuse permission according to some view of his own, giving weight or no weight as he chooses to the policy of the Crown. On the contrary, I think his duty is to obey all lawful directions of the Minister under whom he serves the Crown. The Minister is answerable before Parliament. (at p206)
10. I would dismiss the application. (at p206)
ORDER
Application dismissed with costs.No. 6 of 1965.
Order absolute with costs for a writ of mandamus commanding the respondent Anderson to issue to the prosecutor a charter licence pursuant to the application of 2nd July 1964.
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