Angel Flight Australia v Civil Aviation Safety Authority

[2021] FCA 469

FEDERAL COURT OF AUSTRALIA

Angel Flight Australia v Civil Aviation Safety Authority [2021] FCA 469

File number(s):

VID 222 of 2019

Judgment of:

ANDERSON J

Date of judgment:

11 May 2021

Catchwords:

STATUTORY INTERPRETATION – Civil Aviation Safety Authority made instrument designated as CASA 09/19 – Civil Aviation (Community Service Flights – Conditions on Flight Crew Licences) Instrument 2019 – Applicant seeks orders quashing the instrument and other declaratory relief – whether the instrument is ultra vires in that it fell beyond power conferred by regulation 11.068 of the Civil Aviation Safety Regulations 1998 (Cth) – whether the “class of authorisation” specified in the instrument is not a “class of civil aviation authorisation” specified by the Civil Aviation Safety Regulations 1998 (Cth) – whether the instrument was not authorised by regulation 11.068 of the Civil Aviation Safety Regulations 1998 (Cth) – whether the instrument is expressed to apply in relation to a type of aviation operation (“community service flights”) and not a class of persons – whether the instrument is properly a “legislative instrument”

ADMINISTRATIVE LAW – unreasonableness and reasonable proportionality – whether the instrument is unreasonable or not reasonably proportionate – whether the Civil Aviation Safety Authority’s assessment of risks was not justified on any reasonable ground – whether that assessment was irrational – whether the conditions imposed by the instrument had an insufficient connection to the power conferred by regulation 11.068 of the Civil Aviation Safety Regulations 1998 (Cth)

Held: relevant instrument not ultra vires or unreasonable

Legislation:

Civil Aviation Act 1988 (Cth), ss 3, 3A, 9, 9A, 16, 30DT, 30DU, 30DW, 30DX, 30DY, 30DZ, 98

Civil Aviation Safety Regulations 1998 (Cth), Part 11, Part 13 and regs 61.005, 61.010

Legislation Act 2003 (Cth), ss 8(2), 38 and 42

CASA 09/19 – Civil Aviation (Community Service Flights – Conditions on Flight Crew Licences) Instrument 2019  

Cases cited:

Attorney-General (South Australia) v Adelaide Corporation (2013) 249 CLR 1

Austral Fisheries Pty Ltd v Minister for Primary Industries and Fisheries (1992) 37 FCR 463

Australian Maritime Officers’ Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45

Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732

Donohue v Australian Fisheries Management Authority [2000] FCA 901

Graham v Minister for Immigration (2017) 263 CLR 1

Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101

McEldowney v Forde [1969] 2 All ER 1039

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381

O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356

Parramatta City Council v Pestell (1972) 128 CLR 305

Re Dingjan; Ex parte Wagner (1995) 183 CLR 323

RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855

SAT FM Pty Ltd v Australian Broadcasting Authority (1997) 75 FCR 604

Stephens v Commonwealth of Australia [2017] FCAFC 31

Widgee Shire Council v Bonney (1907) 4 CLR 977

Division:

General Division

Registry:

Victoria

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

376

Date of hearing:

16-17 March 2021

Counsel for the Applicant:

Bret Walker SC and Philip Boncardo

Solicitor for the Applicant:

Sparke Helmore Lawyers

Counsel for the Respondent:

Peter Hanks QC and Dr Laura Hilly

Solicitor for the Respondent:

Minter Ellison

ORDERS

VID 222 of 2019

BETWEEN:

ANGEL FLIGHT AUSTRALIA (ACN 103 477 069)

Applicant

AND:

CIVIL AVIATION SAFETY AUTHORITY

Respondent

ORDER MADE BY:	ANDERSON J
DATE OF ORDER:	11 MAY 2021

THE COURT ORDERS THAT:

1.The applicant’s further amended originating application dated 19 August 2020 is dismissed.

2.The applicant is to pay the respondent’s costs of and incidental to the application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION	[1]
SOME FACTUAL BACKGROUND	[5]
ANGEL FLIGHT’S EVIDENCE	[9]
Relevant evidence of Marjorie Elizabeth Pagani	[11]
Evidence of Dr Owen Crees	[19]
Cross-examination of Dr Owen Crees	[23]
CASA’S EVIDENCE	[29]
Evidence of Christopher Paul Monahan	[30]
Mr Monahan’s role	[30]
CSFs	[32]
The August 2011 accident	[35]
The 2014 Discussion Paper	[37]
The 2017 accident	[42]
A review by CASA	[44]
The 2017 “Standard Form Recommendation”	[47]
The 2018 “Standard Form Recommendation”	[50]
The 2018 Discussion Paper	[59]
Revisiting the data	[64]
CASA’s assessment	[69]
Cross-examination of Mr Monahan	[86]
PARTIES’ SUBMISSIONS	[108]
LEGISLATIVE FRAMEWORK	[110]
CASA’s general powers and functions	[111]
CASA’s power to make the Instrument	[114]
Part VIII of the CA Act	[114]
Part 11 of the CASR	[118]
Part III of the CA Act	[125]
Part 13 of the CASR	[126]
THE INSTRUMENT	[130]
GROUNDS OF REVIEW 1, 2 AND 3 – THE ULTRA VIRES GROUNDS	[134]
Angel Flight’s submissions on Grounds 1, 2 and 3	[135]
Angel Flight’s interest	[135]
The operation of the Instrument	[138]
Angel Flight’s submissions on the power under regulation 11.068	[140]
Angel Flight’s submissions on the conditions imposed by the Instrument	[156]
Angel Flight’s submissions on the Instrument falling outside of regulation 11.068(1)	[160]
CASA’s submissions on Grounds 1, 2 and 3	[164]
CASA’s submissions on “class of authorisations”	[164]
CASA’s submissions on the nature of the Instrument	[175]
CASA’s submissions as to whether the Instrument creates a relevant class	[183]
Angel Flight’s reply submissions	[187]
Submissions on class of authorisations	[187]
Submissions on the nature of the Instrument	[195]
CONSIDERATION OF GROUNDS 1, 2 AND 3	[199]
Ground 1	[200]
The legislative framework	[201]
The imposition of the conditions	[205]
Regulation 13.375 and table 13.375	[207]
Regulation 11.068, Regulation 13.375 and Table 13.375	[209]
Ground 2	[227]
Ground 3	[243]
GROUND OF REVIEW 5 – REASONABLENESS AND PROPORTIONALITY	[249]
Angel Flight’s submissions on Ground 5	[249]
Submissions as to the whole of the Instrument	[250]
Submissions as to particular clauses in the Instrument	[258]
CASA’S submissions on Ground 5	[265]
Angel Flight’s reply submissions	[278]
CONSIDERATION OF GROUND 5	[290]
Relevant principles	[291]
Further evidence	[305]
The evidence of Mr Monahan	[306]
The evidence of Dr Crees	[333]
Application of principle	[339]
The Explanatory Statement	[344]
The evidence of Mr Monahan and the particular conditions	[365]
Disposition of Ground 5	[374]
DISPOSITION	[376]

REASONS FOR JUDGMENT

ANDERSON J:

INTRODUCTION

1. The applicant (Angel Flight), by its further amended originating application filed 19 August 2020, applies to the Court for review of a decision of the respondent, the Civil Aviation Safety Authority (CASA), to make the instrument designated as CASA 09/19 – Civil Aviation (Community Service Flights – Conditions on Flight Crew Licences) Instrument 2019 (Instrument).

2. Angel Flight seeks an order quashing the Instrument together with various orders for declaratory relief.

3. Angel Flight relies upon four grounds of review.  Angel Flight abandoned Ground 4, which related to an alleged breach of the rule of natural justice.  The grounds that are still pressed may be grouped into two categories as follows:

   (a)Grounds 1, 2 and 3: the Instrument is said to be ultra vires in that it fell beyond the power conferred by regulation 11.068 of the Civil Aviation Safety Regulations 1998 (Cth) (CASR);

   (b)Ground 5: it is said that CASA’s exercise of power under regulation 11.068(1) was unreasonable and/or not reasonably proportionate in relation to:

   (i)the making of the Instrument; and

   (ii)the making of cll 7(c), and/or 9, and/or 10, and/or 11 of the Instrument.

4. For the reasons that follow, Angel Flight has not established these grounds of review.  Angel Flight’s application will be dismissed, with costs. 

   SOME FACTUAL BACKGROUND

5. Before setting out each parties’ evidence, some uncontroversial factual matters should be set out. 

6. First, it was not in dispute that, on or around 15 August 2011, an aircraft, with the registration mark VHPOJ, crashed near Horsham in Victoria, fatally injuring all three occupants.  The aircraft had been engaged in a Community Service Flight (CSF) organised by Angel Flight.

7. Second, on or around 28 June 2017, an aircraft with the registration mark VH-YTM collided with terrain shortly after take-off from Mount Gambier Airport in South Australia, fatally injuring the three persons on board and destroying the aircraft.  The aircraft was engaged in a CSF organised by Angel Flight. 

8. Regulation following those events is the subject of this proceeding and it would appear that the parties do not agree about matters relating to the cause of those accidents.  However, as I understood it, it is uncontroversial that those accidents occurred.   

   ANGEL FLIGHT’S EVIDENCE

9. Angel Flight tendered and relied on the following affidavit material:

   (a)the affidavit of Marjorie Pagani sworn 12 March 2019 at [1]-[2], [10]-[29], [33], [35], [52], [59]-[61], [65] and [74]-[79] and annexure “MP-1”;

   (b)the affidavit of Marjorie Pagani sworn 18 March 2019 at [20]-[23];

   (c)the affidavit of Marjorie Pagani sworn 14 February 2020 at [25]-[27], [33] and [36], and annexures “MP-19” to “MP-25” (inclusive);

   (d)the affidavit of Owen Crees sworn 15 June 2020 at [1]-[2], [4], [6] and [8]-[14] and [17] and annexures “OC-1” to “OC-2”;

   (e)the affidavit of Marjorie Pagani sworn 15 June 2020 at [18]-[19], [21]-[23], [35], [42], [47]-[51], [56], [64]-[65], [67]-[69], and annexures “MP-31”, “MP-35”, “MP-45”, “MP-47”-“MP-49” and “MP-51”.

10. These were collectively marked Exhibit A.1 in the course of the hearing and are set out in the Court Book (CB) at 24.  This evidence was also subject to a Ruling on the Parties’ Joint Schedule of Objections (Ruling on Evidence) which I made on 11 March 2021 in this proceeding.

    Relevant evidence of Marjorie Elizabeth Pagani

11. Ms Pagani is the Chief Executive Officer, Company Secretary and a Director of Angel Flight.  Ms Pagani deposed to the following relevant matters.   

12. Angel Flight was established in 2003 and is registered as a “large charity” with the Australian Charities and Not-for-profits Commission.  Angel Flight coordinates non-emergency flights for transportation to the destinations and back (if need be) of:

    (a)patients of all ages needing medical treatment at destinations where other forms of transport are not available, are physically and emotionally taxing or are unaffordable;

    (b)blood and blood products;

    (c)medical drugs; and

    (d)family members for compassionate reasons.

13. Angel Flight operates in every Australian state and mainland territory, although primarily the requirements are for the service to operate in the southern and eastern states and Western Australia.

14. Since 2003, Angel Flight has coordinated more than 46,000 flights for 11,343 patients, carers and family members.  Flights are provided free of charge to the user, including for companions or carers travelling with a patient.  Subject to demand and aircraft size, a flight may provide transportation assistance to more than one patient or family.  Angel Flight accepts assistance from the owners and pilots of jet aircraft for a combination of flights where there are several families needing to go to a particular city from different towns along the same or similar track.  Angel Flight also provides free car transportation between airports and medical facilities and nearby accommodation.  This ground transportation is provided by volunteer drivers.  Angel Flight currently has 3,300 volunteer pilot registrations and 4,500 volunteer driver registrations. 

15. The primary focus of Angel Flight is the transport of disadvantaged rural people, from all over Australia, to major centres for medical treatment where commercial flights are unaffordable or unavailable and where otherwise very long drives on outback roads would be required.  Angel Flight regularly provides compassionate flights for terminally ill patients in city hospitals who want to go home to be with their families, to reunite parents and children separated for lengthy periods due to medical treatment or illness, or to transport deceased premature babies or young children back to the family’s home town so that they can be farewelled.  Angel Flight pilots do not carry aeromedical staff or medical equipment.  The flights are not an alternative to the Royal Flying Doctor Service or any air ambulance service. 

16. Angel Flight does not employ pilots or own aircraft or vehicles.  Flights are conducted by volunteer pilots who own the aircraft or hire aircraft at their own cost.  Angel Flight’s charitable endeavours are entirely dependent upon the willingness of volunteer pilots to offer their time, skills and aircraft.

17. The procedures adopted by Angel Flight in coordinating a flight are as follows:

    (a)a registered health professional contacts Angel Flight with a flight request enquiry;

    (b)Angel Flight assesses whether, in general terms, the request is within its parameters;

    (c)the health professional is then sent relevant documents, including a “Flight Request Form”, “Referrer Guidelines”, “Medical Clearance requirement document”, “Passenger Guidelines” and “Passenger Waivers”;

    (d)the passengers, including all adult accompanying persons, are required to execute the “Passenger Guidelines” and certain waivers and releases of liability, to affirm that they have read and understood the documents;

    (e)the passengers are required to watch a video detailing the types of aircraft likely to be used, manner of entry and exit, luggage requirements and size restrictions;

    (f)a medical certificate must be issued by the treating doctor, advising that the passengers are fit to fly on a light aircraft, and will not require medical assistance.  This document is required to be signed and sent to Angel Flight;

    (g)after the above executed documents are received, the flight is posted on “the billboard” for “pilot application”;

    (h)pilots apply for the mission.  These applications are assessed against parameters such as distance, speed, comfort, fuel, exit and entry issues, and freight requirements (such as prams, baby capsules etc);

    (i)a pilot is then allocated the mission;

    (j)all communications are with Angel Flight, and not directly between the passenger and the pilot or the driver;

    (k)pilots are encouraged (both orally and in documents, including in the “Pilot Handbook”) to cancel the mission at any time if there is any uncertainty about any matters.  No flights are planned for before or after last light.  Angel Flight does not accept any flights planned for night flying, and does not permit the use of the “Night [visual flight rules (VFR)]” rating.  “Backup plans” depend upon the circumstances of an individual request, but may include arranging a seat on commercial air transport (where available), a short drive to the nearest regular public transport airport, or requesting that the referring health professional reschedule the appointment.  In some cases, the passenger may elect to drive;

    (l)no patient is guaranteed a flight or drive.  If a mission is allocated, patients are advised that there is no guarantee that the mission will proceed but, if it does not, Angel Flight will take all possible steps to implement a backup plan;

    (m)upon cancellation of a flight, all communications are between Angel Flight, the passenger and the health professional.  The pilot is not required to undertake any of these tasks;

    (n)Ms Pagani deposes that there are very few pilots who have not cancelled at least one mission and that this is “accepted and expected”;

    (o)Ms Pagani deposes that passengers and health professionals “frequently cancel flights if plans change for them” and this is “accepted and expected”;

    (p)Ms Pagani deposes that, in the case of compassionate or respite flights, and those involving the transport of deceased children with their parents, the contact with Angel Flight is made through social workers at major hospitals, and the same procedures are followed.  In the case of very long distances to transfer terminally ill passengers home or to respite care, jet passenger services are used.  Angel Flight tries to avoid light aircraft flight times of more than 2.5 hours, although in the case of the border-country flights, this will be exceeded.  Angel Flight tries to utilise jet aircraft volunteers where possible on longer flights or in respect of those with more than five passengers.  Many compassionate flights have been, for example, from Sydney to Darwin, Karratha and Broome, and at times Brisbane to Cairns.

18. Ms Pagani deposes that Angel Flight is one of three charities which provides CSFs.  The others are “Wings 4 Kidz” and “Little Wings”. 

    Evidence of Dr Owen Crees

19. Dr Crees has held a private pilot’s licence since 1978.  He has been a volunteer with Angel Flight since 2004 and a director of Angel Flight since December 2019.  Ms Pagani’s affidavit sworn 18 March 2019 deposes that Dr Crees has a Bachelor of Science (Hons), Master of Science and PhD in Chemistry and is the retired Chief Executive Officer and Director of Research Laboratories Australia Ltd, and retired Director of Green Pool Commodity Analysts, Neopec Pty Ltd, Advanced Imagining Processes South Australia (Switzerland) and Tonejet PLC (UK).

20. Dr Crees prepared an analysis of the accident rates for Angel Flight compared to other private operations using internal Angel Flight data, the reports from the Bureau of Infrastructure and Regional Economics (BITRE) concerning aircraft activity, and the Australian Transport Safety Bureau (ATSB) records of aviation accidents.  Dr Crees’s analysis indicates that the fatal accident rate for Angel Flight is not significantly different from that of other general aviation flying.  That is, in Dr Crees’ opinion, it is not possible to claim that Angel Flight has a higher rate of fatal accidents than private, business and sports aviation.  Dr Crees’s report was annexure “MP24” to the affidavit of Ms Pagani filed on 14 February 2020 in this proceeding.

21. Dr Crees deposes that the “ATSB Aviation Occurrence Statistics Report 2008 – 2017” quotes an average rate of fatal accidents for aeroplanes in private operations of 20.3 per million hours.  Dr Crees’s calculations for Angel Flight over almost its entire history from 2005 to 2017 revealed a fatal accident rate of 40 per million hours.  Dr Crees deposes that, at this rate, there have been only two fatal accidents associated with Angel Flight and the difference between Angel Flight and the “ATSB Aviation Occurrence Statistics Report 2008 – 2017” data “is not statistically significant”.  Dr Crees deposes that it is not possible to claim that Angel Flight has a higher rate of fatal accidents.

1. As I have stated, Dr Crees prepared a report which was annexure “MP-24” to the affidavit of Ms Pagani filed on 14 February 2020 in this proceeding.  That report was titled “Analysis of Angel Flight Accident Data”.  Dr Crees’s report stated (among other things):

   In a document filed by CASA … on 15 March [2019], [it was] claimed that the fatal accident rate for community service flights in the period 2008 – 2017 was five times higher than for private/business/sport aviation. [The document] quoted a fatal accident rate of 112.7 per million hours for community service flights compared to 20.86 per million hours for private/business/sport aviation. It is understood [that the document] relied on BITRE (Bureau of Infrastructure and Regional Economics) data for that period, notwithstanding:

   •BITRE did not collect data on community service flights until 2014;

   •the definition of community service flights used by BITRE is so broad as to include charities such as Angel Flight, Little Wings, Wings4kidz, and Funflight as well as other local charity events;

   •aircraft log books and maintenance releases do not record the purpose for which an aircraft was used on each flight so it is impossible for many operators to identify community service flights for individual aircraft;

   •… an average of only 45 owners responded compared to the average of more than 200 different aircraft used in Angel Flight operations in the period …

   …

   Angel Flight has been able to analyze [sic] its own data but does not have access to data from the other community service flight providers.

   …

   Fatal accident rates 2008 – 2016

   This is the only period where matching data are available from both Angel Flight and ATSB records and, therefore, the only data suitable for valid comparisons.

   …

   There was only one fatal Angel Flight accident in this period, giving an estimated rate of fatal accidents of 24.1 per million hours. This is not 112.7 per million hours, as claimed by CASA, nor is it five times the result for private/business/sports aviation. Rather, it is very similar to the rate for private/business/sports aviation and the difference is not statistically significant i.e. it is not possible to claim that Angel Flight has a higher rate of fatal accidents than private/business/sports aviation.

   Fatal accident rates 2005 - 2017

   The period 2008 – 2016 does not include the Mt. Gambier accident that occurred in 2017. However, Angel Flight has flight data for all but its first two years of operation so it is possible to extend the analysis of its operations to 2005-2017. For this period, the fatal accident rate is 40.2 per million hours but the difference between this result and the ATSB rate for private/business/sports aviation is not statistically significant i.e. it is still not possible to claim that Angel Flight has a higher rate of fatal accidents.

   ALL ACCIDENTS

   Accident rates (all accidents) 2008 - 2016

   It is also possible to compare the rates for all accidents in the two sectors as they are important in comparing the risks involved in Angel Flight operations compared to private/business/sports aviation.

   The ATSB report shows that the average rate of all accidents for aeroplanes in the period 2008 – 2016 was 150.9 per million hours.

   For the same period, there were three Angel Flight accidents (including one fatal), giving an average rate of rate [sic] 74 per million hours. Although this result is only half the rate for other private operations, the difference is not statistically significant i.e. it is not possible to claim that Angel Flight has a higher or lower accident rate.

   Accident rates (all accidents) 2005 - 2017

   As above, to make any comparison between Angel Flight and ATSB data beyond 2008 – 2016, one must assume that the accident rate for all general aviation was constant over the extended period.

   For the period 2005 – 2017, there were four Angel Flight accidents (including the two fatal accidents) at an average rate of 75 per million hours. Again, this is only half the ATSB 2008- 2016 rate for private/business/sports aviation but, again, the difference is not statistically significant i.e. it is not possible to claim that Angel Flight has a higher or lower accident rate.

   (Bold and underlined text in the original.)

   Cross-examination of Dr Owen Crees

2. Dr Crees was cross-examined on the first day of trial.  The following summarises propositions with which Dr Crees agreed, or accepted, in the course of his cross-examination. 

3. In cross-examination, Dr Crees accepted that he was not independent from Angel Flight having been a volunteer since 2004 and a director of Angel Flight since December 2019.  Dr Crees accepted that he had advocated on behalf of Angel Flight in opposition to the Instrument.

4. Dr Crees used data from Angel Flight’s database to prepare his report.  He did not attach any of that internal data to his affidavit.  Dr Crees understood that Mr Monahan (of CASA), in formulating the Instrument, had said that CASA did not have access to the internal data from Angel Flight. 

5. Dr Crees accepted that, in carrying out his calculations, he did not have access to data from other CSF operators.  His analysis was to carry out calculations based on a particular data set.  At least part of that data set was derived from Angel Flight.  Dr Crees also had regard to general aviation accident rate data.

6. Dr Crees’s results differ from the results at which CASA arrived.  Dr Crees accepted that the results that he arrived at were based on different data from the data used by CASA.

7. In re-examination, Dr Crees was asked whether, in the course of preparing his report, Dr Crees had seen any material that was an analysis of a death said to have been caused on a CSF.  Dr Crees said he had seen an ATSB investigation of an accident that occurred near Horsham, Victoria, in 2011. 

   CASA’S EVIDENCE

8. CASA tendered the affidavits of Christopher Paul Monahan, affirmed 19 March 2020 and 13 November 2020, as amended by the corrections identified in the Respondent’s solicitors’ letter dated 22 February 2021 (see CB 318) and marked collectively Exhibit R.1.  These affidavits were also subject to the Ruling on Evidence dated 11 March 2021.

   Evidence of Christopher Paul Monahan

   Mr Monahan’s role

9. Mr Monahan is the Executive Manager, National Operations and Standards Division (NOS) of CASA.  He has been employed in that position since March 2018.

10. Mr Monahan’s duties in his current position at NOS are to manage and lead the division charged with the responsibility for policy development and legislative implementation of all aviation safety standards.  The NOS is responsible for oversight of all nationally-administered regulatory services and surveillance, including aircraft certification and production, air navigation services, airspace, aerodromes and remotely-piloted aircraft systems. 

    CSFs

11. Mr Monahan gave evidence that, prior to the enactment of the Instrument, CSFs had been regulated on the basis that they were private flights, notwithstanding that pilots of CSFs were able to obtain reimbursement from the flight coordinator for the costs of fuel consumed during the flight.  Angel Flight is a CSF organisation. 

12. Mr Monahan deposed that Angel Flight is one of two “significant CSF organisations” in Australia.  The other is Little Wings, a not for profit organisation with headquarters in Sydney.  As Mr Monahan understands it, the activities of both Angel Flight and Little Wings focus on the coordination of air and ground transport for sick persons living in rural and regional areas who may not have access to timely and affordable means of travelling to receive medical treatment.

13. Mr Monahan deposed that, as he understands the position, Angel Flight provides a coordination service between patients needing transport and pilots who are prepared to provide that transport.  Angel Flight then reimburses the relevant pilots for the cost of fuel consumed on any mission.  CSFs are often conducted by pilots holding private pilot licences operating aircraft, which are maintained to private maintenance standards.

    The August 2011 accident

14. Mr Monahan understands that, on 15 August 2011, a Piper PA-28-180 Cherokee aircraft, with the registration mark “VHPOJ”, crashed near Horsham in Victoria, fatally injuring all three occupants.  Mr Monahan understands the aircraft had been engaged in a CSF organised by Angel Flight, to transport passengers from Essendon to their home in Nhill following medical treatment in Melbourne.

15. Mr Monahan deposes that the ATSB conducted an investigation into the circumstances of the accident involving aircraft VH-POJ. The findings of that investigation were contained in a report dated 3 December 2013 and published under s 25 of the Transport Safety Investigation Act2003 (Cth) (TSI Act). That report was not tendered in evidence nor was its contents referred to by Mr Monahan in his evidence due to the prohibition from admitting the report into evidence in any civil or criminal proceeding pursuant to s 27(1) of the TSI Act. Section 27(1) provides that “[a] report under section 25 [of the TSI Act] is not admissible in evidence in any civil or criminal proceedings”.

    The 2014 Discussion Paper

16. On 18 August 2014, CASA released a public discussion paper entitled “DP13170S – Safety Standards for CSFs Conducted on a Voluntary Basis” (2014 Discussion Paper).

17. The 2014 Discussion Paper sought public opinion on 10 different options for regulating CSFs.  CASA released the 2014 Discussion Paper because it had become concerned that CSFs continuing to be regulated as private flights may not be appropriate from a safety perspective.

18. The 2014 Discussion Paper canvassed a range of options with the public including whether it was appropriate for an Air Operator’s Certificate (AOC) to be required for CSFs, or if other mechanisms may be more appropriate for the purpose of accommodating these types of flights, while ensuring that acceptable standards of safety are maintained without imposing unacceptable levels of oversight or “red tape”.  Mr Monahan deposes that an AOC is required to be held by operators who conduct (amongst other forms of air operation) commercial, passenger-carrying charter flights.

19. The 2014 Discussion Paper canvassed 10 different options, which ranged between two poles, being “no change to the status quo” through to ensuring “CSF operations [were] under the authority of an AOC”.

20. Mr Monahan’s evidence was that CASA assessed the responses received by CASA to the 2014 Discussion Paper as “unfavourable” to each of the options proposed and not supportive of any change.  CASA then determined in February 2015 not to proceed with regulatory intervention at that time.

    The 2017 accident

21. Mr Monahan’s evidence was that, as he understands it, on 28 June 2017, a SOCATA TB-10 aircraft with the registration mark “VH-YTM” collided with terrain shortly after take-off from Mount Gambier Airport in South Australia, fatally injuring the three persons on board and destroying the aircraft.  Mr Monahan understands that the aircraft was engaged in a CSF organised by Angel Flight to transport a passenger for medical treatment in Adelaide, along with an accompanying family member. 

22. Subsequent to the accident involving aircraft VH-YTM, the ATSB conducted an investigation into the circumstances of the accident.  The findings of that investigation were recorded in an investigation report which was published on 13 August 2019 (and had the reference number reference number AO-2017-069).  That report was not tendered in evidence in this proceeding. 

    A review by CASA

23. Mr Monahan’s evidence was that, immediately following the accident involving aircraft VH-YTM, in early July 2017, the current Director of Aviation Safety and CEO of CASA, Mr Shane Carmody, commissioned a review of CASA’s oversight of CSF operations (Review).  CASA’s Group Executive Manager, Aviation Group, Mr Graeme Crawford, instructed Mr Monahan, as the then Manager of the Flight Standards Branch, to take responsibility for conducting the Review.

24. On 4 July 2017, Mr Monahan tasked Mr Scott Watson, the then Team Leader of the “Fixed and Rotary Wing” within the Flight Standards Branch, with conducting the Review.  At the time, it was Mr Monahan’s understanding that the accident and incident statistics, routinely available to CASA through the ATSB, indicated that, at a minimum, the fatal accident rate in CSF operations appeared to be significantly higher than in other private operations.

25. Throughout the course of the Review, numerous meetings were held with participants in the CSF sector, including Angel Flight and Little Wings in relation to the issues the subject of the Review.

    The 2017 “Standard Form Recommendation”

26. In or around September 2017, Mr Watson provided Mr Monahan with a “Standard Form Recommendation” (September 2017 SFR).  The September 2017 SFR stated (among other things):

    The ATSB regularly publishes summaries of Australian aviation accident and incident statistics. In a variety of reports and statistical summaries[,] … the ATSB has found that the fatal accident rate for General Aviation Private / Business flights has approximated 20 fatal accidents per 1,000,000 flight hours. From 2006-2014, all General Aviation types averaged 8-9 fatal accidents per million departures. The report states that aerial agriculture and private/ business flights had the highest and second highest rates followed by survey and photography, aerial mustering and lastly flying training.

    Although the number of [Angel Flight] accidents is a statistically small sample and therefore may not be able to form the basis of a statistically valid comparison, it is nonetheless useful to extrapolate and compare the [Angel Flight] accident rate to these statistics.

    [Angel Flight] – two fatal accidents in 22000 flights (rounded-up = better) Fatal accident rate per million departures = 90.9

    [General Aviation] – total fatal accident rate per million departures 11.3 (worst – 2012)[.]

    Regardless of the cause[,] the CSF fatal accident rate is in excess of eight times higher than the ATSB [General Aviation] statistics.

27. Mr Monahan did not consider that the data available at the time of September 2017 SFR was robust enough to form a statistically valid comparison between the CSF sector and the general private aviation sector.  Notwithstanding, Mr Monahan considered that the existence of the data referred to in the September 2017 SFR provided a basis for Mr Monahan’s concern that the fatal accident rate in CSF operations was disproportionately high compared to standard private flights and that the higher accident rate may be contributed to by unique features of CSF operations which distinguished them from standard private flights. 

28. Mr Monahan instructed Mr Watson to continue to pursue data analysis of operations within the CSF sector to determine what other potential sources of data could be obtained to bring greater clarity to the safety profile of CSF operations as they compared to standard private operations.

    The 2018 “Standard Form Recommendation”

29. The Review into the conduct of CSF operations continued as did the discussions with participants in the CSF sector resulting in a standard form recommendation to the Director of Aviation Safety dated 13 December 2018 (December 2018 SFR).  The December 2018 SFR recommended that a legislative instrument be made to impose certain operational limitations in the form of conditions on the flight crew licences of pilots who engage in CSFs. 

30. The December 2018 SFR identified the “issue” as follows:

    Since 2011, there have been two CSF accidents resulting in six fatalities. CASA is also aware of multiple accidents and fatalities involving similar operations in the USA.

    Between the 2011 and 2017 accidents, CASA commenced project OS 13/25 to investigate potential safety risks associated with CSF operations and balance these risks with the social needs and benefits of CSF activities, and develop standards. A discussion paper that was published in August 2014 seeking comment on 10 options received significant opposition. Following this feedback, CASA indicated it would not take any immediate action; however, it would monitor the sector and implement actions in the future if necessary.

    Following the 2017 accident, CASA engaged with the relevant charitable organisations to encourage the sector to implement voluntary safety enhancements. While some actions have been taken by the sector, CASA considers it is appropriate to establish a regulatory baseline that provides clarity regarding an appropriate minimum safety standard.

31. The December 2018 SFR outlined “the problem” as follows:

    … CSF operations have considerable potential complexity for pilots who can have minimal experience levels. CSF flight operations are not supported by an organisational safety system that would be required of either an ASAO or AOC based organisation. Processes to ensure that pilots continue to satisfy the requirements for undertaking CSF operations after they are initially accepted by the charitable organisation, or to require pilots to report incidents to enable continual safety improvement, are not consistently in place across the CSF sector.

    The lack of direct safety risk mitigators and the reliance on individual, pilot assessments regarding mission acceptance, commencement or continuance, results in an increased need for Pilots in Command (PIC) to be experienced, operationally recent and well versed in in-flight management, human factors and threat and error management skills. Persons travelling in CSF aircraft are subject to flight operations of increased risk compared to charter or RPT flights.

    Following the 2017 CSF accident, CASA encouraged the charitable organisations to implement voluntary safety enhancements. However, meaningful safety improvements have not been realised.

    Many of these flights are carried out in challenging operational situations such as VFR in marginal VMC or where there is a requirement for night VFR operations. The lack of maximum duty periods leaves pilots to self-assess their fatigue levels.

    There are currently no legislative minimum flight crew licensing, experience or medical requirements for Australian CSF pilots. Australian charitable organisations coordinating CSF do specify minimum requirements for their volunteer pilots however these requirements are generally lower than many of those mandated by similar foreign organisations …

    For several decades, the Australian aviation legislative framework has been evolving towards a risk and participant-based structure. Different operations are regulated in different ways depending upon the risks associated with the operation and the type of non-crew persons directly involved in the operation, depending on how informed they are about the safety risks of the operation. Broadly, non-crew can be classified as uninformed participants, informed participants or passengers.

    Current charitable organisation practices require the person for whom the CSF is arranged to sign a waiver acknowledging that the CSF is conducted to a lower safety standard than a commercial flight. While the waiver indicates the person is an informed person, it is unlikely they truly understand the safety differences (and the safety data) between, for example, a passenger carrying charter flight and a CSF. These persons can realistically only be considered uninformed participants.

    The charitable organisations that coordinate CSF pilots and passengers are not aviation organisations. CASA cannot require these organisations to implement any process or procedural changes. CASA does have an educational and regulatory relationship with CSF pilots, aircraft used to conduct CSF and therefore, indirectly, with CSF passengers.

    Although the two Australian CSF accidents are a statistically small sample, the fatal accident rate when compared to General Aviation (GA) is several multiples higher. The CSF fatal accident rate is approximately 90.9 per million departures, with the GA fatal accident rate 11.3 per million departures. It is important to note that in general terms CSF and GA pilots are drawn from the same cohort.

    A 2007 research article by the US National Transportation Safety Board examined general aviation accidents in degraded visibility and identified several variables that were significantly associated with accident involvement. These included:

    •The pilot not holding an instrument rating increased the accident risk by nearly five times[;]

    •Commercial pilots had a lower accident rate than private pilots; and

    •Private flights had a higher accident rate than flights conducted for commercial purposes.

    (Citations omitted.)

1. The December 2018 SFR conducted a “comparison to similar activities” which stated (among other things):

   Broadly, CSF pilots can operate from a variety of unfamiliar locations in varying weather conditions with no organisational oversight or safety support. They are highly reliant on their own personal skills, knowledge and standards. They are transporting passengers with a very limited understanding of the relative risks between CSF and charter operations.

   Other operations such as charter (in small aeroplanes with low time pilots), parachuting and adventure flights are conducted under organisational supervision or within a regulated framework. Passengers on these flights are reasonably informed participants when compared to an air transport passenger or a CSF passenger. The required minimum hours are usually exceeded in normal practice …

   Noting these differences, it is apparent that to provide a modicum of safety equivalence between CSF and other operations carrying uninformed participants, CSF pilot experience requirements should be increased above those for private pilots conducting a private operation …

2. The December 2018 SFR referred to the following “option analysis”:

   Option 7 (flight crew licensing requirements)

   Since the DP was issued, CASA has focused on establishing the similarities and difference between other Australian non-certificated operations … Private Pilot Licence (PPL) holders have increased hours requirements (400 hours total flight time in aeroplanes or helicopters and 250 hours flight time as [Pilot in Command] in the same) as well as recent and type specific experience …

   The minimum medical standard is Class I or 2, with the Class 2 basic being excluded. This is in line with other safety industries (Rail) within Australia where sudden incapacity or collapse (e.g. from heart attack or blackout) may result in a serious incident affecting the public.

   Recency requirements on the specific aircraft type in which the flight is conducted provide assurance that the pilot is competent on the specific type of aircraft in which the flight is conducted. CASA regulations do not specify aircraft specific recent experience requirements, especially where many different types of aircraft can be flown under the privileges of a class rating that cover numerous types. Additionally, the majority of accidents and incidents occur in the approach and landing phases of flight.

   Option 8 (aircraft operational limitations)

   … CASA's responsibility as a regulator to ensure an adequate level of safety requires that there be clear and unambiguous requirements where certain operations are perceived as increasing the level of risk to an unacceptable level.

   The risks of inadvertent entry into [instrument meteorological conditions (IMC)] at night is greater when clouds cannot be detected when there is little or no ambient lighting. The loss of a visual horizon for pilot who do not hold an instrument rating increases the risk of spatial disorientation that can lead to a loss of control in flight.

   Therefore, it is recommended that the restrictions recommended by option 8 (passengers limited to 5 … and no night VFR) be implemented and that additional restrictions — that should not impact on the CSF sector but that would clarify matters for the sector — also be put in place (CSF only in aeroplanes, mandatory flight notification for VFR in line with RPT and CHTR, flight notification to identify the flight as CSF).

   Option 9 (aircraft certification and maintenance requirements)

   Following consideration of the different certification and maintenance requirements applicable to other Australian aviation operations with overall risk similarities (passenger type, operation type etc), it is recommended that CSF operations be required to utilise the same maintenance requirements that CASA has implemented for parachute jump aircraft. These requirements are not onerous but set a minimum baseline standard that is appropriate for the CSF sector at this time.

   (Italicised text in the original.)

3. The December 2018 SFR identified the following “options”:

   1. Do nothing.

   2. CASA implement either of the preferred options from DP 13170S (ASAO for the CSF sector or require a full AOC for any organisation conducting CSF operations).

   3. CASA implement conditions on pilot licences encompassing minimum pilot in command experience, CSF operational limitations and CSF aircraft maintenance requirements.

4. The December 2018 SFR made the following recommendation:

   It is recommended that Option 3 be implemented as follows:

   1. CASA make a legislative instrument placing the recommended conditions on all pilot licences …

   2. CASA publicly consult on the drafted legislative instrument from mid-Dec 2018 to 31 Jan 2019 (due to the Christmas and New Year period).

   3. Internal and external communications be executed as described in [an] Attachment [to the December 2018 SFR] …

5. The December 2018 SFR concluded as follows:

   The main object of the Civil Aviation Act 1988 (the Act) is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with emphasis on preventing aviation accidents and incidents. To accomplish CASA’s function of conducting the safety regulation of civil air operations in Australia’s territory, one of the methods outlined in the Act is for CASA to conduct regular reviews of the system of civil aviation safety to identify safety-related trends and risk factors to improve the system.

   Achieving an acceptable level of safety for the CSF sector using existing measures is problematic given the current operating and oversight framework. It is recommended that CASA introduce minimum CSF pilot experience, licensing and medical requirements, require flights at night to be conducted using instrument instead of visual procedures and require slightly enhanced aircraft maintenance requirements in line with other operations within Australia involving similar participants.

   The recommended actions are proportionate when compared to other uncertificated operations within Australia and similar foreign requirements.

   …

6. The Director of Aviation Safety, Mr Carmody, accepted the recommendations contained in the December 2018 SFR. 

   The 2018 Discussion Paper

7. On or about 18 December 2018, a discussion paper entitled “Summary of Proposed Change: Proposed Safety Standard — Community Service Flights” (2018 Discussion Paper) was published.

8. On 19 December 2018, the 2018 Discussion Paper and an exposure draft of the proposed legislative instrument (proposed legislative instrument) were published on CASA’s “Consultation Hub” to allow access to members of the public.

9. The 2018 Discussion Paper stated:

   CASA is proposing to introduce a new minimum safety standard for community service flights (CSFs). The new standard relates to:

   •licensing and medical requirements for pilots

   •minimum CSF pilot experience

   •a requirement that flights at night be conducted under the instrument flight rules (IFR)

   •maintenance-related enhancements consistent with requirements governing similar operations in Australia.

   CSFs are non-emergency flights coordinated by registered charitable organisations and conducted for the purpose of transporting people to receive specialist medical treatment. These organisations are not air service providers. CSFs are conducted by volunteer pilots who are solely responsible for the safe conduct of these flights. CSFs can be conducted by day or night, in varying weather conditions, from and to familiar or unfamiliar aerodromes carrying passengers with a variety of medical conditions and needs. CSFs can pose potentially significant challenges for pilots who may have limited flight experience. These flights can be carried out in difficult operational situations including marginal visual meteorological conditions (VMC) and night VFR operations.

   CSFs are not conducted under the safety umbrella of an Air Operator’s Certificate (AOC) or necessarily under what may come to be an Approved Self-administering Aviation Organisation (ASAO) … There are currently no legislated minimum qualifications or experience requirements for Australian CSF pilots other than the standard requirements that apply to the Private Pilot Licence (PPL).

   Australian organisations coordinating CSF specify minimum requirements for their volunteer pilots. These requirements differ substantially between organisations and are generally less demanding than those mandated by similar foreign organisations.

10. The 2018 Discussion Paper continued:

    Operations conducted under an AOC are supported by a comprehensive organisational safety system or a formal safety management system (SMS). Operations in the CSF sector are not required to have any equivalent processes, procedures or risk defences. CASA currently does not have assurance that the CSF sector has consistent processes in place to ensure that pilots who satisfy initial entry requirements into the organisation continue to satisfy the requirements for undertaking CSF operations. After a pilot is initially deemed acceptable by the organisation, he or she does not need to comply with any requirement to report incidents to the coordinating organisation, which would assist that organisation in assessing a pilot’s competence and skill, or in making safety improvements in their organisation’s arrangements.

    This lack of safety risk mitigators and the reliance on individual pilot assessments regarding mission acceptance, commencement or continuance, results in an increased need for pilots in command to have appropriate and recent flight time experience, and to be well versed in in-flight management, human factors and threat-and-error management skills …

11. The 2018 Discussion Paper then set out the requirement which CASA proposed to impose on the CSF sector. 

    Revisiting the data

12. As to the data concerning “incident and accident rates”, Mr Monahan deposes that he instructed CASA’s Flight Standards Branch to re-visit the safety accident and incident data available to CASA to determine whether statistically meaningful trends could be derived from that data as it related to the comparison of incident and accident rates between CSFs and standard private flights.  That safety analysis was conducted by CASA in collaboration with experienced statisticians in the “Strategic Analysis Section” of CASA’s “Coordination and Safety Systems Branch”. 

13. The data available for that analysis included data concerning the number of flight hours conducted in certain kinds of operations (including CSFs from 2014) on an annual basis provided by BITRE, incident and accident data available to CASA, as well as incident and accident data made available to CASA by the ATSB.

14. Mr Monahan anticipated that the ATSB, as part of its report into the June 2017 Mount Gambier accident, would release an extensive data analysis of the incident and accident rates attributable to CSF operations when compared to other forms of private and commercial operations.  Prior to releasing its draft report for comment, the ATSB provided “raw data” held by it in relation to incidents and accidents involving CSFs coordinated by Angel Flight as an attachment to an email dated 6 February 2019 addressed to both Mr Monahan and Ms Pagani, the CEO of Angel Flight.  That attachment stated (among other things):

    By comparing accident rates and fatal accident rates for CSF with Private/Business/Sports (excluding gliding) over the past 10 years (2008 to 2017), [the] CSF accident rate is 1.5 times higher than that for Private/Business/Sports, excluding the gliding accident rate. However, CSF’s fatal accident rate is 5.4 times tha[n] for Private/Business/Sports (excluding gliding). 

    Assuming that all accidents from CSF have been accounted for over the past 10 years, the accuracy of the estimated accident rate is very much dependent on the accuracy of CSF’s activity (i.e. flight hours). If CSF's activity has been accurately reported, the small difference in the accident rates between CSF and Private/Business/Sports (excluding gliding) is statistically insignificant. However, since CSF’s fatal accident rates are 5 times that for Private/Business/Sports (excluding gliding), this appears to be statistically significant.

    A further review of the two fatal accidents in 2011 and 2017 suggests that both pilots were under VFR, but the weather/visibility conditions may have required IFR (2011’s accident occurred at night, while in 2017 it was the result of reduced visibility with fog, as pointed out by the ATSB’s investigation which is still ongoing).

    Another general observation based on the comparative nature of CSF and Private/Business/Sports (excluding gliding) activities is that a pilot undertaking a private flight is not subject to client pressure, while a CSF pilot who has a single-minded focus to complete the mission and get the client to the destination. This suggests that, when the weather is unfavourable, a private pilot is highly likely to cancel or delay the flight, while a CSF pilot may not be able to (or less willing to) cancel the flight (mission-itis or get-there-it is).

15. I will refer to this in these reasons as the “Raw Data”.

16. Mr Monahan’s evidence was that the Raw Data provided by the ATSB was taken into account by CASA in finalising the incident and accident rate data, which was made available to the Director of Aviation Safety, Mr Carmody, for his consideration prior to the issue of the Instrument.

    CASA’s assessment

17. Mr Monahan’s evidence was that CASA’s data analysis examined three key statistical figures by way of comparison.  First, the “fatal accident rate”, which is a measure of accidents occurring in a particular sector of the aviation industry, in which one or more fatalities have occurred within the timeframe under consideration.  Second, the “accident rate”, which is a measure of all accidents, whether involving fatalities or not, occurring in a particular sector of the aviation industry, within the timeframe under consideration.  Third, the “incident rate”, which is a measure of all incidents, occurring in a particular sector of the aviation industry, within the timeframe under consideration.

18. The difference between an accident and an incident is that an incident does not involve or result in damage to the aircraft or to property on the ground.

19. Mr Monahan’s evidence was that the CASA data analysis showed that each of the fatal accident rate, the accident rate and the incident rate were higher in the CSF sector when compared to standard private flights.  CASA’s analysis indicated that the fatal accident rate in the CSF sector was 5.4 times higher than in standard private flights; the accident rate in the CSF sector was 1.5 times higher than in standard private flights; and the incident rate in the CSF sector was 4.5 times higher than in standard private flights.

20. Mr Monahan’s evidence was that aviation is an inherently safe activity, in which incident and accident rates are low.  In that context, the comparison of the fatal accident, accident and incident rates between CSFs and standard private flights, on CASA’s analysis, showed that, in each case, CSF activities were significantly less safe than standard private flights.  Mr Monahan considered that comparison to be of significance because, in Mr Monahan’s view, the operational environment between CSFs and standard private flights should be substantially similar if not identical.  In light of the low incident and accident rates associated with aviation as a whole, Mr Monahan considered that the significant increase in those comparative rates tended to support a conclusion that the operational environment that confronted pilots conducting CSFs was more challenging and involved higher levels of risk when compared with standard private flights.

21. The CASA data analysis had some significance to Mr Monahan.  In Mr Monahan’s view, it provided data to support a conclusion that the CSF operational environment, when compared to standard private flights, involved higher levels of operational risk, which were more likely to contribute to an incident, accident or fatal accident.

22. Mr Monahan asked the “Branch Manager Flight Standards”, Mr Roger Crosthwaite, and his team at CASA to conduct a comparative review of the CSF operational environment in contrast to the standard operating environment to assess what, if any, differences existed.  The Flight Standards Branch (of which Mr Monahan is the Executive Manager) comprises staff with a substantial and diverse range of aviation experience as pilots in all forms of private, commercial and military flying operations, as well as qualifications and experience in aviation safety investigations. 

23. The review conducted by the Flight Standards Branch concluded that the CSF operational environment involved a set of “human factor challenges”, which are not normally present in the standard private operational environment.  “Human factors” refer to a range of variables that impact on human performance and decision making.  These included, for example, fatigue, stress and mental workload.  Mr Monahan deposed that human factors are significant in aviation because they have a significant potential to impact on the safe performance of flying activities by pilots, particularly the quality of decision making.

24. Having considered the work undertaken by the Flight Standards Branch, Mr Monahan’s understanding was that the key human factors which were more likely to be present in a CSF than in any standard flight included five matters.

25. First, Mr Monahan assessed that there was self-induced pressure as a result of the pilot having taken on the responsibility of delivering an unknown patient for important medical treatment at an appointed time, often with the expectation of a same day return.  Mr Monahan deposed that self-induced pressure to complete “the mission” may contribute to pilots making poor decisions or stretching themselves beyond their level of ability or training.

26. Second, Mr Monahan considered that there was significant potential for pressure to be applied on pilots, directly or indirectly, by passengers expecting to be delivered on time for important medical care.  Mr Monahan deposed that the pressure of client expectations is well understood in commercial charter flying.

27. Third, although CSF passengers were not paying the pilot directly as per the case of a charter operation, Mr Monahan assessed that passengers nonetheless had a pressing need for the flight to be competed as intended, since the alternative might mean having to delay important health care or treatment.

28. Fourth, Mr Monahan deposed that guidance material produced by the Aircraft Owners and Pilots Association in the United States has noted the potential for that kind of pressure (referred to in the publication as the “mission imperative”) to be exerted in charitable or public interest flights which are substantially similar in nature and intent to CSFs.

29. Fifth, Mr Monahan deposed that, since pilots have no control over the locations from which patients were to be collected and the destinations to which they were required to be delivered, pilots were more likely to find themselves having to operate in unfamiliar locations or in unfamiliar, complex air space in order to deliver a patient.  Mr Monahan deposed that such matters are not an aspect of standard private flying, where pilots can choose their own departure and arrival points and operate in conditions where they feel comfortable.

30. Mr Monahan’s evidence was that each of the above human factors is more frequently associated with the operational environment encountered by commercial pilots undertaking passenger carrying, commercial charter, operations, rather than standard private flights.  Unlike in the context of a standard private flight, commercial charter flights are regulated to impose higher levels of practical and theoretical training, greater hours of aeronautical experience and have access to additional organisational safety supports.

1. Mr Monahan’s evidence was that the review and analysis undertaken by CASA gave him an understanding that the CSF operational environment was more challenging than the operational environment encountered during a standard private flight.  As a consequence, Mr Monahan determined that the safety associated with CSFs would need to be set at a higher level than that which applied to standard private flights. 

2. Based on CASA’s assessment, Mr Monahan recommended to the Director of Aviation Safety, Mr Carmody, that he sign the Instrument into effect which would introduce safety improvements to the CSF sector.

3. After a period of public consultation concerning the proposed legislative Instrument and taking into account some proposed changes to the Instrument, on 12 February 2019, the Director of Aviation Safety, Mr Carmody, made the Instrument under regulation 11.068 of the CASR.

   Cross-examination of Mr Monahan

4. Mr Monahan was cross-examined on the first day of the trial of this proceeding.  The following is a summary of the cross-examination of Mr Monahan.

5. Mr Monahan was referred to a document titled:

   Standard Form Recommendation (SFR) – FSB …

   Accident or incident investigations (ATSB / NTSB or similar)

   ATSB Transport Safety Report AO-2011-100 —3 December 2013[.]

6. Mr Monahan agreed that that document was a standard form of recommendation within CASA.  It was part of the September 2017 SFR (referred to earlier in this judgment).   

7. That document stated (among other things):

   What happened:

   On 15 August 2011, the pilot of a Piper PA-28-180 Cherokee aircraft, registered VH-P0J, was conducting a private flight transporting two passengers from Essendon to Nhill, Victoria under the visual flight rules (VFR). The flight was arranged by the charity Angel Flight to return the passengers to their home location after medical treatment in Melbourne. Global Positioning System data recovered from the aircraft indicated that when about 52 km from Nhill, the aircraft conducted a series of manoeuvres followed by a descending right turn. The aircraft subsequently impacted the ground at 1820 Eastern Standard Time, fatally injuring the pilot and one of the passengers. The second passenger later died in hospital as a result of complications from injuries sustained in the accident.

   What the ATSB found:

   The ATSB found that the pilot landed at Bendigo and accessed a weather forecast before continuing towards Nhill. After recommencing the flight, the pilot probably encountered reduced visibility conditions approaching Nhill due to low cloud, rain and diminishing daylight, leading to disorientation; loss of control and impact with terrain. One of the passengers was probably not wearing a seatbelt at the time of the accident.

   The ATSB also established that flights are permitted under the visual flight rules at night (night VFR) in conditions where there are no external visual cues for pilots. In addition, pilots conducting such operations are not required to maintain or periodically demonstrate their ability to maintain aircraft control with reference solely to flight instruments.

8. Mr Monahan agreed that this text constituted the only place in the evidence concerning information and conclusions about this fatal accident as to implications for the safe operations of certain kinds of flights.  Mr Monahan agreed that it was the ATSB that conducted investigations into the August 2011 fatal accident referred to in this document.  Mr Monahan agreed that, as to the August 2011 accident, this was the material which Mr Monahan and his colleagues had regard to in forming a recommendation that was ultimately produced in the Instrument.  

9. Mr Monahan accepted that the conditions imposed by the Instrument found no reflection in the two paragraphs of the ATSB report which stated what the ATSB found in respect to the 15 August 2011 accident.  Mr Monahan accepted that there was no “root cause analysis” undertaken by CASA into the two relevant fatal accidents (one in 2011 and one in 2017) which led to any of the recommendations contained in the Instrument.  Mr Monahan accepted that there was no “root cause analysis” leading to any recommended content of the Instrument because there was no such “root cause analysis” consideration by Mr Monahan or his colleagues.

10. Mr Monahan said that the relevant two fatal accidents provided the stimulus for further inquiries by CASA concerning CSFs but the two accidents were not the reason for making the Instrument.  The two accidents precipitated the discussion, but they were not the reason that the Instrument was eventually made.  The two accidents drew CASA’s attention to CSFs. 

11. Mr Monahan accepted that those persons at CASA who had looked at the 15 August 2011 accident before Mr Monahan commenced at CASA did not consider that the 15 August 2011 accident provided justification for any particular condition to be imposed on CSFs.  Mr Monahan also accepted that a second fatal accident in 2017 did not provide any root causes to justify any particular condition to be imposed on CSFs.  Mr Monahan said that the conditions under which CSFs are conducted are different from a normal private flight.  Mr Monahan accepted that there was nothing concerning the circumstances of either of the fatal accidents that informed to any degree the making of the Instrument.  For example, there was nothing as to the root cause, as to the training or experience of the pilots, as to the conduct of passengers, or as to the particulars routes or mission. 

12. Mr Monahan said that there were conditions peculiar to CSFs as opposed to ordinary private flights.  However, Mr Monahan accepted that, in respect of the two fatal accidents, he had no information as to whether any generalised differences between CSFs and ordinary private flights were in operation in the two fatal accidents. 

13. Mr Monahan said that CASA had incident and accident data from BITRE and ATSB regarding the two fatal accidents.  Mr Monahan accepted that statistical analysis was a means by which information about the two fatal accidents could be used to test CASA’s hypothesis about CSFs compared to ordinary private flights.

14. Mr Monahan accepted that he knew nothing about any of the accidents or incidents so as to attribute their occurrence to anything which is peculiar to CSFs.  Mr Monahan accepted that there was nothing in the facts or “root cause analysis” of the second fatal accident which, on their own, justified the imposition of the conditions on CSFs.  Mr Monahan accepted that he did not, in his affidavits, raise any disagreement with the data analysis set out in Mr Crees’s affidavit. 

15. Mr Monahan accepted that the comparator CASA used to compare CSFs was “other ordinary private flights”.  However, CASA excluded from that comparator group “gliders”, “crop dusting” flights, “balloons” and “gyrocopters”.  Mr Monahan said that such flights were excluded because they were not “similar type operations”.  Mr Monahan said, for example, that gliders were excluded from the comparator group because gliders do not have an engine and they do not have a “passenger carrying charter-like operation”.  Mr Monahan said that CASA, in conducting its analysis, tried not to exclude from the comparator group those operations which were similar to CSFs.  Mr Monahan accepted that his affidavits in this proceeding did not include any justification for how the comparator group was formulated, and, in particular, why it included (what were referred to in cross-examination as) “country aerodrome joy flights”.  Mr Monahan also agreed that his evidence did not set out an analysis of any relation between accidents and numbers of passengers.    

16. Mr Monahan said that there was a difference between CSFs and private flights.  The difference in CSFs is that the people present may be under medical stress, and that the mere presence of that type of passenger creates a different condition in the CSF aircraft that warranted attention.

17. Mr Monahan accepted that he did not have data concerning the passenger numbers carried by CSFs. Mr Monahan accepted that the desirable support of empirical justification, for the imposition of conditions concerning the number of passengers on CSFs, positively required him to obtain such data or to accept that he had no empirical support for such a condition. 

18. Mr Monahan accepted that he did not have data differentiating between CSFs and ordinary private flights in respect to the requirement concerning the completion of a minimum amount of flight time.  The data he had was provided by BITRE and studies reviewed of other comparative nations.

19. Mr Monahan said there were two reasons for imposing more requirements with respect to CSFs concerning recordkeeping.  First, there was a lack of data on these matters, and a recordkeeping requirement enabled an understanding of, for example, how many people have flown, where they have flown, and how many passengers were being carried.  Second, Mr Monahan stated that CSF conduct, operationally, was a different type of flight that has a higher accident rate (as assessed by CASA) that warrants attention and, by having more data, CASA can assess if it can understand CSFs more effectively with more data going forward.

20. Mr Monahan believed that CASA had sufficient information about the “general pool” of private flights based on “the BITRE data” and other data which gave CASA a baseline, but CASA did not know much about CSF operations.  That was the justification for the imposition of the recordkeeping condition.  CASA wanted to find out more specifically about the smaller group, which was CSFs.

21. Mr Monahan was referred to cl 11 of the Instrument, which is titled “Aeroplane maintenance requirements”.  Mr Monahan said that maintenance of aircraft was a matter obviously germane to safety regardless of the type of flight being undertaken.  Mr Monahan accepted that there was nothing special about CSFs which imposed differential stresses or strains justifying differential maintenance requirements.  There was no data collected or analysed during consideration of the making of the Instrument that suggested that there was anything about CSFs that informed a particular need for aeroplane maintenance requirements such as is found in cl 11 of the Instrument.

22. Mr Monahan said that the maintenance requirements in the Instrument apply to CSFs for the additional risk attributed to those flights.  Mr Monahan said that the risk exposure is how often someone is exposed to a risk of a maintenance-related incident.  Mr Monahan accepted that there was no body of data, upon which there was performed any analysis or consideration in producing the Instrument, concerning aircraft maintenance and the two fatal accidents.

23. Mr Monahan accepted that CASA looked to the approach of foreign jurisdictions as a cue to consider what the position in Australia might justify.  That was one of the elements in CASA’s consideration.

24. Mr Monahan said that he believed that, as a consequence of s 27(1) of the TSI Act, there were restrictions on his ability to discuss the work which the ATSB conducts in relation to investigations on behalf of the Commonwealth government.  This, Mr Monahan said, was part of an information sharing agreement which CASA has with ATSB.  Mr Monahan said that, because of this prohibition, he could not discuss the nature of the comments the ATSB made in their reports into the fatal accidents.

25. Mr Monahan said that the ATSB report provided information to CASA concerning the two fatal accidents.  CASA does not itself do investigations like the ATSB.  Mr Monahan said that the two fatal accidents were unusual and, even before the ATSB report came out in full, had drawn CASA’s attention because, in Mr Monahan’s words, it is “unusual to have two fatal accidents occur in one sector, or even one subsector, and that was … the start of the process that [CASA] used to gather data as much as [it could], [to] try to analyse that data, [and to] identify … risks that might be unique to … those circumstances”.

    PARTIES’ SUBMISSIONS

26. Angel Flight relied upon its written submissions dated 6 July 2020, 23 December 2020 and 25 February 2021.  At the hearing, Mr Bret Walker SC appeared with Mr Phillip Boncardo of counsel.

27. CASA relied upon its written submissions dated 5 February 2021.  At the hearing, Mr Peter Hanks QC and Dr Laura Hilly of counsel appeared on behalf of CASA.

    LEGISLATIVE FRAMEWORK

28. The legislative framework which provides the relevant powers and functions of CASA was not in dispute between the parties.  The parties’ submissions conveniently summarised the relevant legislative framework as follows.

    CASA’s general powers and functions

29. CASA was established by s 8 of the Civil Aviation Act 1988 (Cth) (CA Act).  The main object of the CA 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”: CA Act, s 3A.

30. CASA’s functions are prescribed by s 9 of the CA Act.  CASA has the function of “conducting the safety regulation of”, among other things, “civil air operations in Australian territory” (CA Act, s 9(1)(a)), by means that include:

    (a)“developing and promulgating appropriate, clear and concise aviation safety standards”: CA Act, s 9(1)(c); and

    (b)“conducting regular reviews of the system of civil aviation safety in order to monitor the safety performance of the aviation industry, to identify safety-related trends and risk factors and to promote the development and improvement of the system”: CA Act, s 9(1)(g).

31. In “exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration”: CA Act, s 9A(1). In the performance of its functions and the exercise of its powers, CASA “must, where appropriate, consult with”, among others, “relevant bodies and organisations”: CA Act, s 16.

    CASA’s power to make the Instrument

    Part VIII of the CA Act

32. Section 98 of the CA Act is in Part VIII of the CA Act.  It empowers the Governor-General to make regulations not inconsistent with the CA Act, including regulations:

    (a)“prescribing matters required or permitted by the CA Act to be prescribed”: CA Act, s 98(1)(a); and

    (b)“prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to the CA Act”: CA Act, s 98(1)(b).

33. Section 98(5A) of the CA Act provides:

    The regulations may empower CASA to issue instruments in relation to the following:

    (a) matters affecting the safe navigation and operation, or the maintenance, of aircraft;

    (b)       the airworthiness of, or design standards for, aircraft.

    An instrument must not prescribe a penalty.

34. Section 98(5AA) of the CA Act provides that an instrument issued under s 98(5A)(a):

    … is a legislative instrument if the instrument is expressed to apply in relation to:

    (a) a class of persons; or

    (b) a class of aircraft; or

    (c)a class of aeronautical product.

35. Section 98(5AB) provides that an instrument issued under s 98(5A)(a):

    … is not a legislative instrument if the instrument is expressed to apply in relation to:

    (a)       a particular person; or

    (b)       a particular aircraft; or

    (c)       a particular aeronautical product.

    Part 11 of the CASR

36. The Governor-General has made the CASR. Part 11 of the CASR “sets out administrative provisions for the regulation of civil aviation”: CASR, reg 11.005. Subpart 11.BA contains rules about granting authorisations, including the duration of, and the imposition of conditions on, authorisations.

37. Regulation 11.068, which appears in Subpart 11.BA, provides:

    (1) For subsection 98(5A) of the [CA Act], CASA may issue a legislative instrument that imposes a condition relating to a matter mentioned in that subsection on a specified class of authorisations.

    (2) The class of authorisations may include authorisations granted before the imposition of the condition.

    (3) A condition imposed by a legislative instrument issued under subregulation (1) is taken to be a condition of every authorisation of the class mentioned in the instrument.

    (4) A condition imposed by a legislative instrument issued under subregulation (1) takes effect:

    (a) for an authorisation that takes effect before the day on which the instrument comes into force:

    (i)        when the instrument comes into force; or

    (ii) if a later time is stated in the instrument – at that time; and

    (b) for an authorisation granted on or after the day on which the instrument comes into force:

    (i)        when the authorisation comes into effect; or

    (ii)       if a later time is stated in the instrument – at that time.

38. Regulation 11.077(1) provides that a person commits an offence if a “person holds an authorisation subject to a condition imposed under regulation … 11.068 … and the person contravenes the condition”. The offence is one of strict liability and has a maximum penalty of 50 penalty units: CASR, regulation 11.077(2).

39. “Authorisation” is defined by regulation 11.015 for the purposes of Part 11 of the CASR to mean a “civil aviation authorisation” other than “an AOC”, “a delegation”, “the appointment of an authorised person”, “an authorisation issued by ASAO” (being an approved self-administering aviation organisation under Part 149 of CASR) and certain approvals and qualifications. A note to regulation 11.015 provides that the definition of “civil aviation authorisation” is that specified in s 3 of the CA Act.

40. “Civil aviation authorisation” is defined as follows under s 3 of the CA Act:

    civil aviation authorisation means an authorisation under [the CA Act] or the regulations to undertake a particular activity (whether the authorisation is called an AOC, permission, authority, licence, certificate, rating or endorsement or is known by some other name).

41. Neither the CA Act nor the CASR defines “class of authorisations” for the purpose of regulation 11.068 of the CASR.

42. “Aircraft” are defined by s 3 of the CA Act to mean “any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface”. “Aeronautical product” is defined by s 3 of the CA Act to mean “any part or material that is, or is intended by its manufacturer to be, a part of or used in an aircraft, unless excluded by the regulations”.

    Part III of the CA Act

43. Part III of the CA Act deals with the regulation of civil aviation. Division 3D of Part III is titled “Demerit points scheme”. Section 30DT provides that “regulations may prescribe … offences to which [Division 3D] applies … and the number of points that are incurred in relation to an offence”. Section 30DU of the CA Act states that the “regulations must prescribe classes to which civil aviation authorisations belong, having regard to the activities covered by the civil aviation authorisations”. Section 30DW provides that, in certain circumstances, the “holder of a civil aviation authorisation” will incur “demerit points for a prescribed offence” (being “an offence prescribed under section 30DT”). Section 30DX(1) provides that, if “the holder of a civil aviation authorisation incurs demerit points, the demerit points are incurred in relation to the class of authorisations to which the offence relates”. Incurring demerit points may result in the suspension of a civil aviation authorisation or its cancellation: see CA Act, ss 30DY-30ED.

    Part 13 of the CASR

44. Part 13 of the CASR is titled “Enforcement procedures”. Regulation 13.370(1) provides that all offences under the Civil Aviation Regulations 1988 (Cth) and the CASR that are specified as “strict liability offences” are offences to which the demerit points scheme in Division 3D of Part III of the CA Act applies.  Regulation 13.370(2) provides the number of demerit points that are incurred in relation to relevant offences.  The number of demerit points depends on the maximum number of penalty units applicable to an offence.  Relevantly for present purposes, regulation 13.370(2)(b) provides that, if the maximum penalty for an offence is 26 penalty units or more, 3 demerit points will be incurred.

1. The Explanatory Statement further explains that the lack of organisational safety and “risk mitigators”, and the reliance on individual pilot assessments, results in an increased need for pilots in command to be experienced and operationally up-to-date.  The conditions in the Instrument are directed to increasing aeronautical experience and the currency of that experience.

2. The Explanatory Statement at page 2 also identifies that, at least as assessed by CASA, CSFs have elevated risk and that the conditions imposed by the Instrument are intended to introduce reasonable and proportionate additional safety measures in relation to the licencing, medical fitness and aeronautical experience of pilots who operate in the CSF sector.

3. The Explanatory Statement identified that, since 2011, community service flight accidents have resulted in 6 fatalities.  As I understood it, that is a statement of historical fact. 

4. These are all statements from a regulator of air safety to which experienced aviation safety professionals have contributed.  Angel Flight also accepts that these matters were expressed in good faith.  In such circumstances, one can fairly conclude that the matters set out in the Explanatory Statement are overtly rational and reasonable.  

5. I do not accept Angel Flight’s submissions that it is necessary for CASA to demonstrate by some statistical or empirical analysis that a risk factor exists to justify the validity of a condition in an Instrument made under regulation 11.068(1). I do not accept that establishing a statistical significant difference between two subsectors of the aviation of industry is necessary to sustain the validity of an instrument issued under regulation 11.068 of the CASR. That is to impose a burden upon CASA beyond that required by standards of reasonableness and rationality and the requirements in s 98(5A) of the CA Act and regulation 11.068 of CASR. It is sufficient if a rational and reasonable basis exists for CASA to conclude that matters identified in relation to CSFs – such as operating in an unfamiliar location or operating an aircraft in varying weather conditions with no organisational oversight or safety support from a certificated air operator – imposes an elevated risk which the conditions in the Instrument reasonably seek to address and that they are matters affecting the safe navigation and operation, or the maintenance, of aircraft. It is sufficient if the conditions reasonably advance the purposes in the CA Act referred to above or if there is a sufficient connection between the conditions and the relevant objectives of the CA Act. 

6. In this respect, Angel Flight’s submissions tended to indicate that, to be valid, it was a requirement for CASA to isolate particular causal links between the circumstances of the CSF sector and the need for the conditions in the Instrument.  Angel Flight’s submissions tended to indicate that CASA was required to engage in a process of formulating a testable hypothesis concerning possible causal links, testing that hypothesis through data collection and analysis, and generating an assessment which is likely to be true, including by establishing an acceptable degree of statistical significance. 

7. By way of example, in oral closing submissions, senior counsel for Angel Flight submitted:

   MR WALKER: … [T]here were no empirical data or analyses from empirical data or analyses that provided differences with statistical significance which would have, in themselves, justified consideration being given to a differential treatment for the imposition of conditions directed to the all-important purpose of safety.

   Now, I accept that pointing to the absence of such material or reasoning, what I will call the empirical approach, is pointing to something which, if present, would plainly have justified, in a way that judicial review would never question, the making of an instrument. And I accept that it’s not simply a matter of inverting that and saying, in its absence, therefore, there cannot be an exercise of power lawfully. However, where that is lacking, and if we are correct in the further step of persuading your Honour that there is nothing else that provides the evidently intelligible connection between outcome and purpose so as to satisfy the requirements of the power, then, in our submission, we are not merely well on our way, but we have reached the position where your Honour should vindicate that minimal but critical requirement of rational justification in the exercise of serious administrative powers …

   MR WALKER: … [I]n our submission, what you ought to find in accordance with the way that we have written this in the two written submissions in-chief on this point and in the summation that you find in our reply written submission on this point, that there was never an endeavour to connect the imposition of conditions by this instrument in their particular respects with anything that could be learned from the incidents, accidents and fatal accidents about which you have heard … [T]here is nothing in the instrument that can be said to be derived, let alone justified, by lessons learned from any incident, accident or fatal accident or the aggregate of them. There is nothing statistical, in any sense of that word, concerning, for example, numbers of passengers; neither is there anything statistical, whatever one means by that word, about pilot experience, including recency of landings, etcetera …

   MR WALKER: … [I]t is equally the case that the idea of simply applying something because it is from overseas without at least something in the nature of investigation, calibration and understanding of comparability would … never be reasonable …

   MR WALKER: … [W]hat I hope to persuade your Honour [of] is that once one establishes that there was nothing about the actual accident experience that either produced statistically significant differences between the sectors said to be compared, that in any event, that was an entirely unstable comparison …, totally unstable basis for a comparison which, in any event, produces a difference that cannot be said to be statistically significant …

   Then we come to the more pointed lack of any connection … between what was available about the accidents … and … in any of the groups: the CSF group or the private aviation group … [T]here’s no connection … between any data or empirical analysis and the content of the instrument, then one seems to be driven in this case, by default, to what I will call the overseas experience. Now, the overseas experience, as your Honour knows, doesn’t produce what I’m going to call a parallel exercise, namely, where the same framework of reasoning is present, but with the great advantage of there being, in the overseas cases, empirical data to supply the absence that exists in this country …

   But when it comes to calling in aid overseas experience, … [y]ou won’t find, with respect, a schema of reference to overseas experience by Mr Monahan which points out why certain experience … should be regarded as casting any particular light let alone unfavourable light concerning the safety record of the Australian operations … [Y]our Honour will look in vain for anything in the nature of empirical studies available for the Australian decision-makers from overseas distinguishing in a meaningful way between flights that can be treated as equivalents of CSFs and other flights which can be treated as a sensible comparator for that …

   MR WALKER: … [W]e are left with what, in our submission … is nothing other than well-meaning intuition [as the basis for the Instrument].    

8. In reply, senior counsel for Angel Flight further submitted as follows:

   MR WALKER: … [The] material does not single out in a way that explains the peculiar risk factor which is the foundation of the reasoning for the instrument. This instrument is not one that says, “For all we know this particular risk factor is common to all kinds of aeronautical operations but we choose, for reasons that a court can’t examine by judicial review, to regulate only one segment of the activities” … We are left with the repeated assertion, in the material leading up to the making of the instrument and the ex post facto justification in the evidence, that there is to be discerned, we would respectfully submit, by not much more than surmise that there may be – that is, a hypothesis is raised – something peculiar about the circumstances or conditions of the CSFs which provides the justification for a CSF-specific instrument … Once it is … accepted that that hypothesis was never the subject of any testing, there were no data that were gathered for the purpose of examining that hypothesis, then one is simply left with the possibility that it is true, just as there is the possibility it is not true … [O]ur submission is that when the approach was taken of positing a peculiarity of CSFs in the face of a lack of data and analysis that meant that that may or may not be true, with no indication of a likelihood one way or the other, one’s left scraping the bottom of the barrel in terms of the intellectual justification for what happened …

   [H]ere, there is a plain statement of intent to address a peculiar risk factor, but the peculiar risk factor is not demonstrated, and of course then the connections all fall apart for the reasons examined in cross-examination that none of those provisions of the instrument address something which any analysis of the any of the accidents, incidents, or fatal accidents might have revealed one way or the other. That’s the reason why, in our submission, [when] all proper weight [is] given to the experience of those who considered the making of this instrument, and to overseas … material, … it doesn’t make out the peculiar risk factor, let alone the matching of the instrument to meet a peculiar risk factor.

9. I do not accept this type of methodology was required.  This is for two reasons.  First, there is no indication in the text of the relevant statutory materials that such an assessment, which is largely based on the methods of applied natural science, is necessary.  Second, the authorities provide no indication that such methods are required. 

10. As to the text of the relevant statutory materials, the “regulations may empower CASA to issue instruments in relation to … matters affecting the safe navigation and operation, or the maintenance, of aircraft”: CA Act, s 98(5A)(a). In O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356, Toohey and Gaudron JJ at 374 described the words “in relation to” as being “an expression of broad import”. Justice McHugh stated at 376 that the “prepositional phrase “in relation to” is indefinite”, but, “subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters” (internal quotations in the original; emphasis added). 

11. Having regard to those matters, I do not accept that the words “in relation to” in s 98(5A) of the CA Act required a connection between the Instrument and “matters affecting the safe navigation and operation, or the maintenance, of aircraft” that was supported by statistical significance or the methods of analysis which were advanced by Angel Flight.  It was sufficient if there was “a relationship, whether direct or indirect, between” the two relevant “subject matters”.  There was, in particular, no requirement to establish that there was a statistically significant difference between the relevant accident and incident rates of CSFs and the relevant rates of other operations.  There was no requirement that the conditions in the Instrument be supported by methods that are coextensive with natural science.          

12. As to the position in relevant authorities, Dixon J (as his Honour then was) in Williams v Melbourne Corporation (1933) 49 CLR 142 (at 155) stated that “the true character of the by-law may … appear to be such that it could not reasonably have been adopted as a means of attaining the ends of [the relevant] power” and, in such a case, “the by-law will be invalid” (emphasis added).  In Pestell, Menzies J stated at 323 that a “sound opinion” is one that is “right”, but the “validity of a [relevant] rule does not depend on the soundness of a[n] … opinion”; rather, “it is sufficient if the opinion expressed is one reasonably open” (emphasis added).  In Adelaide Corporation, French CJ described the relevant test as requiring “a rational relationship between the purpose for which the power is conferred and the laws made in furtherance of that purpose”:  Adelaide Corporation, [58]. Chief Justice French also stated that the “reasonable proportionality test of validity” was, “in substance, whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose”: ibid. Justice Hayne (at [117]-[118]) described the test as involving “a question of degree and judgment” and stated that the relevant conclusion:

    is to be reached paying due regard to “accepted notions of local government” and the fact that “[m]unicipalities and other representative bodies which are entrusted with power to make by-laws are familiar with the locality in which the by-laws are to operate and are acquainted with the needs of the residents of that locality”.  It is not to be assumed (and no reason was given to the contrary in this appeal) that any more confined understanding of a by-law making power should be preferred.

    (Emphasis added.)          

13. In light of those authorities and the matters referred to, I do not accept Angel Flight’s submissions as to the methods of analysis which were said to be required for the purposes of making an instrument under regulation 11.068 of the CASR. I am satisfied that a reasonable regulator, having regard to the material that was before CASA, could reasonably have adopted the conditions in the Instrument as a means of attaining the ultimate end of “maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents”: CA Act, s 3A.

14. This position is reinforced by the evidence of Mr Monahan. 

    The evidence of Mr Monahan and the particular conditions

15. On the evidence of Mr Monahan and the findings that I have made in respect to that evidence, I am satisfied that it was reasonable for CASA to form the view that the CSF sector faces higher risks than standard private flights by reason of, amongst other things:

    (a)pilots conducting CSFs operating from unfamiliar locations and in varying weather conditions;

    (b)the absence of adequate organisational oversight of safety support from a certified air operator, and a lack of adequate organisational safety risk “mitigators”; and

    (c)pressure on pilots that may result from self-induced pressure to start or complete a flight because of a passenger’s medical condition.

16. Mr Monahan and his expert team within CASA considered that these factors elevated the risk of CSF operations when compared to standard private flight operations.  It was accepted by Angel Flight that Mr Monahan and his team are, in fact, experts in air safety with extensive experience, and I so find.  In light of Mr Monahan’s evidence, I find that CASA considered the CSF sector in a detailed way, made an assessment and imposed certain conditions.  Those conditions are based on, and consistent with, the typical “levers” (referred to above) which CASA employs when regulating safety.  Those conditions are rationally connected to the object of the CA Act and the purposes identified in s 98(5A) of the CA Act, being matters affecting the safe navigation and operation, or the maintenance, of aircraft.  I am of that opinion for the reasons that follow.

17. In relation to the passenger restriction conditions contained in cll 7(1)(c) and 10(a), Mr Monahan said those clauses were introduced in order to limit exposure to the higher risks associated with CSFs to those who had a legitimate need, connected to the purpose of the flight, to travel on that flight and not unnecessarily increase the “human factor” challenges faced by pilots conducting CSF.  I accept the evidence of Mr Monahan that additional passengers is a source of pressure on pilots and that limiting the number of passengers limits the amount of pressure which a pilot may have to deal with in flight on account of passenger behaviours.  I accept Mr Monahan’s evidence that he considered that a limit of 5 passengers was a reasonable number, which had regard to Mr Monahan’s understanding at the relevant time that CSFs involved the transport of one patient and potential support persons.

18. Clause 8 imposes a condition on a flight crew licence that its holder must not pilot an aeroplane operated for a CSF if the aeroplane is an excluded aeroplane.  The excluded aeroplanes include “an amateur-built aircraft accepted under an Amateur Built Aircraft Acceptance” (Instrument, cl 8(2)(a)(ii)), an aeroplane in respect of which “an experimental certificate” is in force (Instrument, cl 8(2)(b)), or an aeroplane that “is not registered” (Instrument, cl 8(2)(c)).  That condition is plainly directed to ensuring that, based on CASA’s expert knowledge and experience in aviation safety, certain aircraft should not be used for a CSF.  It is tolerably clear that CASA has assessed that those types of aircrafts entail particular risks which should not be present in the CSF sector.  The categories of “excluded aeroplanes” are limited.  The condition in cl 8 is not an absolute prohibition.  I was also not taken to any evidence which would suggest that the use of the aeroplanes excluded by cl 8 was reasonably necessary for CSFs.  I was not taken to any evidence which suggests how cl 8 is unreasonably broad.               

19. The aeronautical experience requirement in cl 9, which increases the minimum requirement of aeronautical experience, is, in Mr Monahan’s view, frequently used by CASA to increase aviation safety, with the level of required experience being commensurate to the complexity of the flying task and the risk exposure.  I accept Mr Monahan’s evidence that safe navigation and operation was the purpose for the introduction of the increased aeronautical experience requirements in cl 9 of the Instrument.  In this respect:

    (a)I accept Mr Monahan’s evidence that the aviation regulatory regime frequently imposes minimum requirements in relation to aeronautical experience as an entry level requirement to the holding of a particular authorisation, or the performance of a particular activity.  I accept Mr Monahan’s evidence that provisions of that nature are based on the assumption that minimum levels of particular kinds of flying experience are necessary before a person can safely be entrusted to perform particular flying activities.  I accept Mr Monahan’s evidence that, in imposing aeronautical experience requirements, Mr Monahan took into account (among other things) the aeronautical experience requirements imposed by large charitable or public benefit flight organisations in the United States, Canada and New Zealand.  I also accept that Mr Monahan took into account guidance from the US Aircraft Owners and Pilots Association (AOPA) which noted that pilots with less than 200 hours of total experience should refrain from engaging in volunteer flight operations because they are involved in significantly more accidents than pilots with more than 200 hours experience.

    (b)As to clause 9(1)(a) of the Instrument, it generally requires that, prior to undertaking a CSF, a pilot must have conducted one landing in the class or the type of the aircraft to be used for the CSF.  I accept Mr Monahan’s evidence that take-off and landing are two of the highest risk phases of flight and accidents in the approach and landing phase of flight are more common.  I accept Mr Monahan’s evidence that the requirements imposed in clause 9(1)(a) of the Instrument were intended to serve two safety purposes.  First, they were directed to ensuring that the pilot’s skills in those phases of flight had been used in recent practice within the 30 days before the relevant flight.  In this respect, I accept that Mr Monahan had regard to AOPA Guidance which recommends that volunteer pilots conduct at least one landing in the 30 days prior to a volunteer flight.  Second, the requirements were directed to ensuring that, if the pilot is unfamiliar with the relevant aircraft type to be used for the CSF, the pilot was to familiarise himself or herself with the critical take-off and landing procedures for the relevant aircraft prior to conducting the CSF.

    (c)As to clause 9(1)(b) of the Instrument, it generally requires a pilot to have at least 10 hours flight time in the relevant aircraft type before conducting a CSF under the Visual Flight Rules (VFR) in that aircraft type.  I accept Mr Monahan’s evidence that this clause was intended to ensure that the relevant pilot is sufficiently familiar with operational procedures and the handling characteristics of the aircraft to be used in the CSF in order to be in a position to confidently manage any in-flight occurrence.  I accept Mr Monahan’s evidence that, based on Mr Monahan’s experience as a pilot, Mr  Monahan was aware that increases in pilot experience in the operation of a particular aircraft type can be critical in all stages of a flight, and the familiarity from that experience can save essential seconds in managing or responding to unexpected situations.

    (d)As to clause 9(1)(c), it generally requires 20 hours of flight time in the aircraft if the CSF is to be conducted under the Instrument Flight Rules (IFR).  I accept Mr Monahan’s evidence that the intent of cl 9(1)(c) was similar to the intent of cl 9(1)(b).  I accept Mr Monahan’s evidence that the higher experience threshold for CSFs conducted under the IFR was due to IFR operations being much more complex than VFR operations.  I accept Mr Monahan’s evidence that IFR operations are conducted in “instrument meteorological conditions” (IMC), in which the pilot’s ability to navigate and control the aircraft by observing the horizon and terrain below the aircraft is substantially (or potentially totally) obscured by cloud.

    (e)As to clause 9(1)(d), it generally provides that a pilot must have 25 hours of flight time as a pilot in command of a multi-engine aeroplane before conducting a CSF in such an aircraft.  I accept Mr Monahan’s evidence that multi-engine aircraft are generally more complex and of higher performance than single engine aircraft, which has particular relevance to managing the failure of one engine in a multiengine aircraft, where the pilot must be familiar with the aircraft in order to fly it safely on the remaining engine.

    (f)As to cll 9(2) and 9(3), those clauses impose additional requirements on private pilots.  They generally require that the private pilot has aeronautical experience that includes at least 400 hours of flight time conducted in an aeroplane or a helicopter, and at least 250 hours of flight time as pilot in command of an aeroplane or a helicopter.  I accept Mr Monahan’s evidence that it takes between 35 and 40 hours of flight training to obtain a private pilot licence (PPL) and PPL holders fly considerably less than commercial pilots.  I accept Mr Monahan’s evidence that the 400 hours of total flight time was selected because it is 50 hours beyond the level identified in certain studies as the point at which the accident rate for inexperienced pilots starts to decline.  In addition, it is broadly consistent with the total flight time requirements for CSF pilots imposed by charitable and public interest flight coordinators in the United States, Canada and New Zealand.  I accept Mr Monahan’s evidence that the additional requirement of 250 hours as the “pilot in command” is designed to ensure that the total of 400 hours of accumulated flight time comprises more than 50% of flight time in which the pilot has been the “pilot in command” of the aircraft.  In this respect, I accept Mr Monahan’s evidence that flying an aircraft as the “pilot in command” is a different experience, with additional, important responsibilities, when compared to flying while under instruction with a flight instructor on board, or as a co-pilot with another pilot on board who is in command of the aircraft.  I accept Mr Monahan’s evidence that these requirements were designed to ensure that CSF pilots who are PPL holders have sufficient experience in making command decisions to be entrusted with the safe conduct of a CSF.

1. As to clause 10(b) of the Instrument, it generally prevents operation of an aircraft engaged in a CSF under the VFR at night.  I accept Mr Monahan’s evidence that flights under the VFR at night are more challenging than VFR flights conducted by daylight.  I accept that Mr Monahan took into account AOPA Guidance which noted that night time operations (whether under the VFR or the IFR) are associated with higher risks than day time operations.

2. Clauses 10(c) and (d) of the Instrument require pilots to lodge a flight notification with Air Services Australia, identifying the flight as a CSF, and to record the flight in their personal log books along with a notation identifying the flight as a CSF.  I accept Mr Monahan’s evidence that those measures were designed to assist CASA to collect data to establish the numbers of CSFs being conducted in Australia, who was flying the CSF and what aircraft are being used.  I accept Mr Monahan’s evidence that such data will provide CASA with access to a more complete and meaningful range of data about the conduct of CSFs, for use in future analysis of operational safety trends affecting CSF operations, and to inform future safety decisions relating to CSFs.

3. Clause 11 of the Instrument imposes maintenance requirements on CSF. The imposition of maintenance requirements has a direct and rational connection to the purposes identified in s 3A of the CA Act, and s 98(5A) of the CA Act which expressly refers to “the maintenance of … aircraft”. Section 9(1)(c) of the CA Act imposes on CASA the function of conducting the safety regulation of civil air operations by developing and promulgating aviation safety standards where “the safety of air navigation [is] the most important consideration”: CA Act, s 9A(1).

4. In this respect, I accept Mr Monahan’s evidence that he expected that the imposition of this requirement, requiring CSF aircraft to be maintained to at least the “aerial work standard”, would increase the safety standards applicable to CSFs because the likelihood of a mechanical-related occurrence increases as parts and components wear. Mr Monahan deposes that private aircraft, maintained in accordance with Schedule 5 of the Civil Aviation Regulations 1988 (Cth) (CAR), must have an annual inspection, which is referred to as a periodic inspection. Those aircraft can fly an unlimited number of hours within that 12-month period. By contrast, aircraft engaged in commercial “aerial work” activities, which include commercial activities such as aerial mustering, aerial spotting and aerial surveying, and whose owners have selected CAR Schedule 5 as their system of maintenance, must have a periodic inspection every 12 months or 100 hours, whichever occurs first. I accept that Mr Monahan considered that the Instrument should incorporate a clause requiring CSF aircraft to be maintained to at least the “aerial work standard”. I accept that, in making that recommendation, Mr Monahan had regard to the Federal Aviation Administration of the United States (FAA)’s Policy Clarification on Charitable Medical Flights and FAA policy which imposes a condition concerning higher aircraft airworthiness requirements.

   Disposition of Ground 5

5. By way of summary, on the evidence, I do not accept that the particular clauses of the Instrument were not each reasonably and rationally connected to the purpose of the CA Act.  The Instrument could reasonably be adopted in furtherance of the relevant statutory purpose.  Put differently, I do not accept that the Instrument could not reasonably have been adopted as a means of attaining the ends of the relevant power.  There is a reasonable and rational connection between each of the measures, the purposes of the CA Act, and the safe navigation and operation, or maintenance, of aircraft.  CASA’s exercise of power under r 11.068(1) was not unreasonable or lacking reasonable proportionality in the relevant sense.

6. For these reasons, I reject Ground 5.

   DISPOSITION

7. I make the following orders:

   (a)The applicant’s further amended originating application dated 19 August 2020 will be dismissed.

   (b)The applicant pay the respondent’s costs of and incidental to the application.

I certify that the preceding three hundred and seventy-six (376) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

Associate:

Dated:       11 May 2021