Australian and International Pilots Association and Civil Aviation Safety Authority

[2020] AATA 3444

Australian and International Pilots Association and Civil Aviation Safety Authority [2020] AATA 3444 (4 September 2020)

Division:GENERAL DIVISION

File Number(s):      2020/1720

Re:Australian and International Pilots Association

APPLICANT

AndCivil Aviation Safety Authority

RESPONDENT

AndQantas Airways Limited

JOINED PARTY

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:4 September 2020

Place:Sydney

The Tribunal is satisfied that it does have jurisdiction to review the respondent’s Full FRMS implementation approval instrument dated 25 February 2020.

..................................[sgd]......................................

Deputy President B W Rayment OAM QC

CATCHWORDS

PRACTICE AND PROCEDURE – whether Tribunal has jurisdiction to review approval instrument of the Civil Aviation Safety Authority – whether conditions imposed, or existing conditions varied to flight crew licences – where Tribunal satisfied it did have jurisdiction to review

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 42A

Civil Aviation Act 1988 (Cth) ss 28BA, 31, 98
Civil Aviation Regulations 1988 (Cth) regs 5, 210A, 215
Civil Aviation Safety Regulations 1998 (Cth) regs 11.068, 61.150
Civil Aviation Order 48.1 Instrument 2013

Civil Aviation Order 48.1 Instrument 2019 cls 4.1, 8, 9, 10.2, 16.1

SECONDARY MATERIALS

Explanatory Statement, Civil Aviation Order 48.1 Instrument 2019

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

4 September 2020

1. The respondent (‘CASA’) submits that the Tribunal does not have jurisdiction to entertain the review that the applicant has sought from the Tribunal. I have heard the question as a preliminary point. Qantas has applied to join the proceedings and I have made an order to permit that course, including on the jurisdictional question.

2. The application made by CASA is that the applicant’s application for review should be dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’), on the ground that the Tribunal should be satisfied that the decision is not reviewable by the Tribunal.

3. A further point has been mentioned by CASA in submissions, being a question of whether the applicant has standing to bring the proceedings. That question has, by agreement, been deferred for the time being.

4. The Tribunal has no general jurisdiction to review actions of the executive. Rather, pursuant to s 25(1) of the AAT Act, an enactment may provide that applications may be made to the Tribunal, amongst other things, for review of decisions made in the exercise of powers conferred by that enactment. An enactment is defined so as to include a Commonwealth Act.

5. The jurisdiction question depends on the interpretation and application of s 31 of the statute which establishes CASA, the Civil Aviation Act 1988 (‘the CA Act’). Section 31 provides as follows:

   31Review of decisions

   (1)In this section:

   decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

   reviewable decision means:

   (a)a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations; or

   (b)the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation, contained in such a certificate, permission, permit or licence; or

   (c)a decision under subsection 30EF(3) (about reinstating a civil aviation authorisation that has been suspended or cancelled under Division 3D);

   but does not include:

   (d)a suspension of a civil aviation authorisation under section 30DC (suspension for contravening the serious and imminent risk prohibition); or

   (e)a suspension or cancellation of a civil aviation authorisation under Division 3D (the demerit points scheme).

   (2)Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision.

   (3)Where the person making a reviewable decision gives to the person whose interests are affected by the decision notice in writing of the decision, the notice shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal, by or on behalf of any person whose interests are affected by the decision, for review of the decision.

   (4)A failure to comply with subsection (3) in relation to a decision does not affect the validity of the decision.

6. The applicant’s members include Qantas pilots, who hold licences granted or issued under regulations made under the CA Act. Those regulations were the Civil Aviation Safety Regulations 1998 (‘the CASR’). Sub‑part 61B of the CASR sets out the general requirements for a flight crew licence, which pilots who are members of the applicant association need to have. CASA has authority to grant a flight crew licence under regulation 61.150(1).

7. The applicant says that by the means described below, conditions were imposed upon pilots’ flight crew licences, or existing conditions of their flight crew licences were varied, so as to satisfy paragraph (b) of the definition of reviewable decision in s 31(1).

8. On 13 August 2019, Mr S.P. Carmody, Director of Aviation Safety, on behalf of CASA, made an instrument under subregulation 5(1), regulation 210A and sub-regulation 215(3) of the Civil Aviation Regulations 1988 (‘the CAR’), subregulation 11.068(1) of the CASR, and paragraph 28BA(1)(b) and subsection 98(4A) of the CA Act. The instrument was entitled Civil Aviation Order 48.1 Instrument 2019 (‘the 2019 CAO’).

9. The 2019 CAO was accompanied by an Explanatory Statement issued by CASA, which stated that the purpose of the instrument was to provide Air Operator Certificate (‘AOC’) holders, flight crew members (‘FCMs’) and certain other operators with ‘a comprehensive regulatory framework for the more effective management of fatigue risk in aviation operations.’

10. The Explanatory Statement states that the 2019 CAO (described as the new CAO) provides nine prescriptive fatigue management regimes applicable to different kinds of operations, one or more of which an AOC holder must nominate in their operations manual and adhere to. It also stated:

    [a] tenth regime is available (an FRMS) which is somewhat less prescriptive than any of the other 9 but which, to be approved and effective, requires strict, scientific and tailored use of individualised fatigue risk management data for relevant FCMs, within the framework of an international standard.

11. The tenth regime is dealt with in Appendix 7 to the 2019 CAO, which is headed ‘Fatigue Risk Management System (FRMS)’ (‘Appendix 7’). Paragraph 1.1 of Appendix 7 provides that an AOC holder may apply to CASA for both a trial and a full implementation approval, for all or part of its operations.

12. Paragraph 1.2 of Appendix 7 provides as follows:

    1.2For a trial or full FRMS implementation approval, an FRMS must include CASA approval of each of the following elements of the FRMS:

    (a)the policy and objectives, and related documentation, in accordance with clause 2;

    (b)the practical operating procedures in accordance with clause 3;

    (c)the hazard identification, risk assessment and mitigation procedures in accordance with clause 4;

    (d)the safety assurance procedures in accordance with clause 5;

    (e)the safety promotion procedures in accordance with clause 6;

    (f)the change management procedures in accordance with clause 7.

    Note 1    Significant changes require CASA approval. See clause 7.

    Note 2    Guidance for the development and implementation of an FRMS is available on the ICAO and CASA websites.

13. Paragraph 8 of Appendix 7 refers to the circumstances in which CASA may issue a trial FRMS implementation approval. That applies to fresh trial FRMS approvals (that is approvals granted after the 2019 CAO commenced). However, the predecessor instrument also made provisions for a trial FRMS implementation approval.

14. Paragraph 9 of Appendix 7 refers to the circumstances in which CASA may issue a full FRMS approval. Paragraph 9.1 is in the following terms:

    9.1CASA may, on written application, issue an AOC holder with a full FRMS implementation approval, if the AOC holder:

    (a)has held a trial FRMS implementation approval for at least 12 consecutive months; and

    (b)satisfies CASA, through relevant data and reports, that the FRMS:

    (i)     is demonstrably delivering the safety outcomes expected when the trial FRMS implementation approval was given; and

    (ii)    is capable of delivering continuous improvement in the delivery of safety outcomes.

15. Paragraph 9.3 of Appendix 7 states that:

    9.3For paragraph 9.1(a), a trial FRMS implementation approval is deemed to include such an approval issued under Civil Aviation Order 48.1 Instrument 2013 as in force immediately before the commencement of this CAO.

16. Prior to the commencement of the 2019 CAO, such a trial implementation approval had been given by CASA to Qantas. It was therefore open to Qantas to make an application to CASA for approval of a full implementation of the FRMS, although the trial implementation approval had been given under the Civil Aviation Order 48.1 Instrument 2013 (‘the 2013 CAO’). That is what Qantas did and it is whether CASA had power to approve the full implementation of the FRMS that the applicant desires to challenge on the review.

17. The power to issue a full FRMS implementation approval under paragraph 9.1 of Appendix 7 was exercised by CASA on 25 February 2020 by a delegate of CASA (‘the FRMS Approval Instrument’). The delegate identified his source of power as ‘subclauses 1.2 and 9.1 in Appendix 7’ to the 2019 CAO.

18. Clause 1 of the FRMS Approval Instrument states as follows:

    1Application

    1.1This instrument applies to Qantas Airways Limited (the operator), ARN 216147, in its capacity as the holder of an Air Operator’s Certificate (AOC) number CASA.TAAOC.0094.

    1.2This instrument applies for flight crew members (FCM) and operations identified in the fatigue risk management system (FRMS) as being covered by the FRMS.

    Note      FCMs who are covered by the FRMS may be identified by name, aircraft, operation or otherwise.

19. The applicant wishes to assert that the conditions stated in paragraph 9.1(b) of Appendix 7 were unsatisfied, and that it would be a matter for the final hearing, if the Tribunal has jurisdiction.

    RELEVANT PROVISIONS OF THE 2019 CAO

20. Clause 4.1 of the 2019 CAO, headed ‘Application and Effect’, states as follows:

    4.1Subject to paragraph 4.2, this CAO applies, according to its terms, to each of the following:

    (a)subject to subparagraph (b), an AOC, other than a foreign air transport AOC;

    Note The expression “foreign air transport AOC” and the related expression “foreign air transport operation” are defined in the CASR Dictionary. See Part 129 of CASR.

    (b)except when subsection 11 applies — an AOC which covers application operations under Part 137 of CASR;

    (c)a Part 141 certificate;

    (d)a flight crew member employed by the holder of an AOC or a Part 141 certificate to which subparagraph (a), (b) or (c) applies;

    (e)for the purposes of subsection 16 — a flight crew member mentioned in that subsection.

21. Clause 16.1 is a specific provision imposing a condition on all flight crew licences, as follows:

    16.1For subregulation 11.068(1) of CASR, it is a condition on each flight crew licence that the licence holder must not begin to carry out any task for a flight if, due to fatigue, the FCM is, or is likely to be, unfit to perform a task that the FCM must perform during the flight.

22. Clauses 8, 9 and 10.2 of the 2019 CAO provide as follows:

    8General condition on Air Operators’ Certificates

    Each AOC is subject to the condition that the AOC holder must:

    (a)comply with each requirement for the AOC holder as set out in this CAO; and

    (b)comply with the limits and requirements for an FCM as provided for by each Appendix of this CAO which the AOC holder applies to the FCM; and

    (c)ensure that each of the AOC holder’s FCMs, when acting as such, complies with each requirement imposed by this CAO on flight crew licences.

    9General conditions on flight crew licences

    9.1The flight crew licence of an AOC holder’s FCM is subject to the condition that the FCM must comply with each limit and requirement imposed on the FCM by this CAO.

    9.2The flight crew licence of an FCM in a private operation is subject to the condition that the FCM must comply with the requirement imposed on the FCM by paragraph 16.1 of this CAO.

    Note Under regulation 11.077 of CASR, breach of a flight crew licence condition is a strict liability offence.

    …

    10.2Subject to subsections 11 and 13, each FCM of an AOC holder must comply with the limits and requirements mentioned in the Appendix or Appendices which the AOC holder has chosen to comply with under paragraph 10.1.

23. It should be explained that Appendix 7 is one of the Appendices mentioned in clause 10.1.

    SUBMISSIONS OF CASA

24. In arguing that the effect of clause 9 and/or clause 10.2 of the 2019 CAO and/or clause 1.2 of the FRMS Approval Instrument does not impose or vary any conditions of the flight crew licences in a case where an approval of CASA under Appendix 7 to the 2019 CAO is involved, CASA argued as follows:

    As understood, the Tribunal’s questions are directed to the “effect” of the decision that the applicant seeks to have reviewed as a ‘reviewable decision’; namely, the administrative decision embodied in the FRMS approval instrument as authorised to be made under the 2019 CAO. As such, the Tribunal’s questions are understood to be as follows:

    (i)Does the issue of the FRMS approval instrument impose a limit or requirement on an FCM “by this CAO” within the meaning of paragraph 9.1 of the 2019 CAO?

    The short answer to this question is “no”.

    In terms, the FRMS approval instrument (an administrative not a legislative instrument) does what it says it does; namely, for the purposes of the relevant sub-clauses of the Appendix that the operator has chosen to comply with (Appendix 7) CASA has approved [Qantas’] FRMS on a full FRMS implementation basis.

    CASA’s approval of [Qantas’] FRMS completes a particular process that enables [Qantas] to implement a particular system, affecting the safety of its air operations, under an election that it is entitled to make under the 2019 CAO. By its election, [Qantas] does not – and legally cannot – “impose” a condition on the licences of any of its flight crew. There is no “ambulatory” imposition (or variation) of a condition on a flight crew licence each time [Qantas] may, in accordance with Schedule 1 of the FRMS approval instrument, amend, change or modify the approved FRMS whether that step requires further CASA approval or not.

    Furthermore, CASA’s administrative power to approve an FRMS under clause 1.2 of Schedule 7 of the 2019 CAO is not a separate source of power by which a condition may be imposed upon a flight crew licence. CASA’s administrative powers to impose such conditions are limited to those provisions outlined in paragraph 23 above.[1]

    [1] Paragraph 23 of CASA’s submissions is stated as follows:

    The relevant regulatory regime establishes only 5 methods or processes by which a condition may be imposed upon a flight crew licence after that licence has been issued. These are:

    (a)Via administrative decisions made under subregulation 11.067(1A) of the CASR following the licence holder receiving written notice of the proposed condition and being provided a reasonable period within which to make a submission in relation to the proposed condition – subregulations 11.067(2) and (3);

    (b)Via legislative instrument made in the exercise of the power contained in subregulation 11.068(1) of the CASR;

    (c)Via administrative decision made under subregulation 11.125(3) of the CASR upon the application of the licence holder for the variation of the licence (including imposing a condition on the licence);

    (d)Via administrative decision made in the exercise of CASA’s powers under subregulation 269(1) of the CAR to vary, suspend or cancel a licence upon the grounds set out in subparagraphs (a)–(d). This is a decision-making process which also requires the licence holder to first be given a show cause notice and the opportunity to make a submission in relation to the proposed grounds of the variation including any proposed variation of an extant condition – subregulation 269(3); or

    (e)Via administrative decision made in the exercise of CASA’s powers under subregulation 99.415(1) of the CASR to vary, suspend or cancel a licence if CASA determines that the licence holder has contravened the requirements of the drug and alcohol testing regime established under Part 99 of the CASR. As with CAR 269, this is a decision-making process that requires the licence holder to first be given a show cause notice and the opportunity to make a submission in relation to the proposed decision – subregulation 99.415(4).

    Under s 31(1)(b) of the [CA Act], as relied upon by the applicant, the question to be asked and answered is: what is the condition “contained” in a flight crew licence that has been imposed by a decision of CASA? It is a wrong question to ask: what is the effect of an approval of [Qantas’] FRMS on the work or tasks to be performed by a FCM?

    The only “conditions” that are relevantly “contained” in a flight crew licence relating to flight and duty limitations or requirements of a FCM are those set forth in paragraphs 9.1 and 16.1 of the 2019 CAO. Those licence conditions are not changed by anything contained in the FRMS approval instrument. They are the conditions “imposed” on a flight crew licence pursuant to subregulation 11.068(1) of the CASR as set out in a legislative instrument which took effect on 2 September 2019. That different tasks may need to be performed, from time to time, by a FCM by reason of the election that his or her employer has made in relation to the content of a FRMS, does not constitute a variation of conditions that have already been imposed by paragraphs 9.1 and 16.1 of the 2019 CAO.

    (ii)Does paragraph 10.2 of the 2019 CAO or sub-section 1.2 of the FRMS approval instrument produce the result that conditions were imposed on the licences of [Qantas’] pilots (by reason of an administrative decision of CASA)?

    The short answer to this question is “no”.

    Again, a fundamental distinction must be drawn between a condition imposed on a flight crew licence by a legislative instrument (in accordance with CASR 11.068) and the circumstances in which a legal obligation may arise to affect the way work is performed.

    In terms, paragraph 10.2 of the 2019 CAO, in relation to each FCM of [Qantas], directs that person to comply with the limits and requirements mentioned in the Appendix that [Qantas] has chosen to comply with under paragraph 10.1. This is an exercise of CASA’s power pursuant to subregulation 210A(1)(a) and (b) of the CAR to issue a direction to licence holders, not a condition imposed upon the licence of the relevant licence holders. (…[T]he 2019 CAO was authorised by a number of different legislative provisions including regulation 210A and subregulation 11.08(1) of the CASR.)

    The condition imposed on a flight crew licence by paragraph 9.1 – to comply with each limit and requirement imposed on the FCM by the 2019 CAO – is consistent with the direction contained in paragraph 10.2 – to comply with the limits and requirements mentioned in the Appendix that the air operator for whom the FCM works has chosen to comply with under paragraph 10.1. However, the point in time, and the method by which, specific tasks must be performed by an FCM in order to fulfil a legal obligation to comply with a particular limit or requirement, is another issue. Compliance with the direction will constitute observance of the condition imposed on the FCM by the 2019 CAO.

    The breach of a pre-existing flight crew licence condition imposed by the 2019 CAO – being a strict liability offence under CASR 11.077 – will only occur when the content of the tasks to be performed have been determined. For example, assume that a condition of a State or Territory driver’s licence is that a driver must comply with the Australian Road Rules. Those road rules or their implementation (eg speed limits) obviously change and vary over time. However, the change or alteration of the content of the rules does not ‘impose’ a new condition on, or ‘vary’ a pre-existing condition of, a driver’s licence. In order to comply with a new rule, a driver may need to alter his or her driving behaviour; for example, now drive at no more than 50 kph in a zone where, previously, driving at 80 kph was permitted. The licence ‘condition’ requires the driver to comply with the road rules whatever they may be at the relevant time of driving.

    As submitted by CASA at the jurisdiction hearing, a simple analogy is contained in CASR 11.075.

    Under subregulation 11.075(2), it is a condition of an authorisation (including a flight crew licence) that its holder must comply with a notice given under subregulation 11.075(1). Under that provision CASA may, by written notice, require the holder of the authorisation to give CASA specified information that, inter alia, relates to the activity to which the authorisation relates. Non-compliance with a notice is a strict liability offence. The required information does not have to be in existence at the time the authorisation comes into effect. The existence of the statutory condition on a flight crew licence does not then make every decision of CASA to issue a CASR 11.075(1) notice a new decision to impose or vary a condition contained in an existing licence. Such a notice does nothing more than engage the obligation to which the statutory condition relates or, at most, determines the content of the obligation that has arisen under the extant condition.

    Sub-section 1.2 of the FRMS approval instrument does nothing more than identify the scope of application of the administrative instrument. That CASA’s approval of [Qantas’] FRMS may affect the way in which a FCM of [Qantas] may need to go about performing a task, on or after 1 March 2020, to ensure compliance with [Qantas’] FRMS does not introduce a new “condition” on the licence of the FCM or vary a condition already imposed on that licence under the 2019 CAO.

    Neither sub-section 1.2 nor any other provision of the FRMS approval instrument produces or achieves “the result” of imposing conditions on any flight crew licence. To hold otherwise would be to find that the effect of an administrative approval of a particular system formulated by an air operator (the FRMS approval) under an Appendix to the 2019 CAO was to impose conditions upon, or otherwise vary existing conditions of, flight crew licences held by an FCM of the operator, by-passing the specific processes that are required to be followed for that to occur … This is not an outcome that is consistent with a sound interpretation or application of the rules and the regulatory scheme put in place to enable operators and employed pilots to manage the risks of fatigue in the conduct of air operations.

    For the purposes of s 31(1)(b) of the Act, in the context of the present matter, a "reviewable decision" means a decision that imposes or varies a condition contained in a licence. Such a decision assumes that a particular statutory process – as outlined in paragraph 23 above – has been undertaken or enlivened in order to impose or vary the condition. A characterisation of the “effect” of a decision as advanced by the applicant would result in a potentially vast number of administrative decisions being found to be reviewable by reason of the "effect" that the decision may be said to have on the tasks to be performed by a licence holder. This is untenable.

    A direction under CAR 210A to a flight crew licence holder about the number of hours that the licence holder may fly in any period or the rest periods that the licence holder must take etc could be said to have an “effect” on the way the licence holder must work but that “effect” could not rationally be viewed as resulting in a new condition being imposed on the licence of the licence holder. To conclude otherwise would be to adopt a construction of the applicable legislative provisions that distorts the coherence of a carefully structured statutory scheme which governs conduct concerning the management of a particular safety risk – fatigue.

    (emphasis in original)

    SUBMISSIONS OF QANTAS

1. The submissions of Qantas adopted the submissions of CASA. Qantas submitted that clause 10.2 of the 2019 CAO ‘rises no higher than setting a rule in respect of limits and requirements for operations by reference to the FRMS, and does not impose any “conditions” or provide for specific limitations in that respect.’

2. Qantas also submitted as follows:

   In respect of paragraph 1.2 of the [FRMS Approval Instrument] issued on 25 February 2020, that paragraph states that the instrument applies to FCMs 'and operations identified in the fatigue risk management system'. This paragraph goes no further than merely identifying who the instrument applies to and what operations it applies to, and then references the [FRMS Approval Instrument’s] application to specifically FCMs and operations contained in the FRMS. Accordingly, neither paragraph 10.2 of the 2019 CAO, nor paragraph 1.2 of the [FRMS Approval Instrument], in their terms (expressly or otherwise) produce the result that conditions were imposed on the licences of FCMs.

   Paragraph 14.2 of the 2019 CAO makes clear that the limits and requirements that are to apply to an FCM must be determined in accordance with the Appendix chosen by the AOC holder to apply to the FCM, and the balance of paragraph 14, where applicable, sets out the ways in which the AOC holder needs to document the AOC holder's and the FCM's responsibilities.

   Qantas adopts in full paragraph [5] of the Respondent's reply submissions dated 9 June 2020. Qantas further submits that the condition expressly provided for in paragraph 9.1 of the 2019 CAO (being 'the condition that the FCM must comply with each limit and requirement imposed on the FCM by this CAO' (emphasis added), does not contemplate anything beyond paragraph 9.1 of the 2019 CAO imposing the condition on a FCM. The limit and requirement imposed on the FCM is imposed by paragraph 9.1 of the 2019 CAO. Limits or requirements may change from time to time from the date that the 2019 CAO came into effect (including by reference to the implementation of the full FRMS implementation as it gives content by specifying any limitations), but the condition itself imposed remains unchanged. This, of course, is as it should be: any condition needs to be clearly articulated and capable of enforcement.

   Qantas elected to fulfil its obligations by selecting a particular Appendix of the 2019 CAO, in this case, Appendix 7. Paragraph 9.1 of Appendix 7 permits CASA to issue a full FRMS implementation approval where among other things, the AOC holder has held a trial FRMS implementation approval for at least 12 consecutive months. The trial FRMS (which became the full FRMS) informs the content of FCM's responsibilities, but the condition imposed by paragraphs 9.1 and 10.2 of the 2019 CAO did not change, namely that the FCM has an ongoing obligation to comply with each limit and requirement thereunder. It is the regulatory framework established by CAO as set out above which imposes the condition, not the approval issued on 25 February 2020. With respect to that approval, paragraph 1.2 does no more than confirm that the FCMs and operations covered by the FRMS are the subject of the approval. As is the case with paragraph 10.2 of the 2019 CAO, there is no reference in paragraph 1.2 of the 2020 instrument to the imposition of any condition (as distinct from the express reference to this in paragraph 9.1 of the 2019 CAO).

   The difficulty with [the applicant’s] submissions, namely that the content of the FRMS itself imposes conditions, can be illustrated by reference to the change management procedures established under paragraph 7 of Appendix 7. That paragraph details the change management procedures that an FRMS applicant is required to have in place, defines the term 'significant change', and specifies what type of CASA approval or notification is required for each type of FRMS change (that is, a significant change or another type of change). Significant changes, defined under paragraph 7.1 of Appendix 7, require specific CASA approval. These may include, but are not limited to, facilitating the introduction of new aircraft, scheduling technology and developments in fatigue science. Paragraph 7 also expressly provides for an operator to make changes that are not significant changes. Such changes may relevantly include certain amendments to flight and duty limitations and post-duty rest periods, pursuant to the approved change management procedures, and involve a requirement only to notify (rather than seek approval from) CASA. Qantas submits that it is as a result of this particular framework under the 2019 CAO, and when viewed in context, that the full FRMS implementation permits changes of the kind expressly provided for without altering the condition imposed on the FCM by the 2019 CAO.

   Put another way, the condition was imposed on licenses of FCMs by paragraph 9.1 of the 2019 CAO, with the approval of the full FRMS implementation informing CASA as to how Qantas is going about fulfilling its obligations in relation to adhering to and modifying the relevant limits and requirements. The regulations enacted (in this case, the 2019 CAO), are that which impose conditions on FCMs. The 2020 instrument is, by contrast, the means by which CASA approves the way in which Qantas goes about complying with the conditions imposed.

   Qantas adopts and contends in full the substance of the Respondent's submissions as to jurisdiction, contained in paragraphs [17]-[28] dated 8 May 2020, and in further reply submissions of 9 June 2020. The Tribunal has previously considered the distinction between an 'approval' and a 'permission' sought or granted under the applicable aviation legislation: Rudd and Civil Aviation Safety Authority [2017] AATA 1334. Qantas maintains its submission that the 'decision' under review is not a 'reviewable decision' and the Tribunal ought to find that it has no jurisdiction.

   SUBMISSIONS OF THE APPLICANT

3. The applicant submitted the contrary of the submissions of Qantas as to clause 9.1 of the 2019 CAO, and also relied upon the provisions of clause 10.2 of the 2019 CAO and described paragraph 1.2 of the FRMS Approval Instrument as the final link. The applicant also discussed some of the detailed provisions of the FRMS, and Qantas replied to those submissions. The FRMS has not been put before the Tribunal at this stage, and I am not able to discuss its detailed terms.

   DISCUSSION

4. The jurisdiction question depends on whether conditions of the licences of the flight crew were imposed or varied, within the meaning of s 31 of the CA Act, by virtue of the approval by CASA of the full implementation of the FRMS. If so, there is a reviewable decision.

5. In order to resolve that question, it is necessary to construe some of the provisions of the 2019 CAO, in particular, the provisions set out in [‎20]–[‎22] above, the language of which is, in some respects, difficult.

6. As the Explanatory Statement to the 2019 CAO indicates, the Appendices to the 2019 CAO sets out a series of regimes among which an AOC holder may choose. Each regime imposes obligations on the AOC holder and its employees, the FCMs. If the AOC holder chooses one or more of Appendices 1 to 6 of the 2019 CAO, the 2019 CAO itself will impose obligations (described in the 2019 CAO as conditions) on the AOC and on the licences of the FCM.

7. If the AOC holder elects to use Appendix 7, it will be the terms of the FRMS (that is, a document which CASA may approve subsequently to the date of the 2019 CAO), which will spell out the obligations of both the AOC holder and the FCMs.

8. While clause 8(b) of the 2019 CAO refers to ‘each Appendix of this CAO’, therefore including Appendix 7, clause 9.1 does not do so expressly.

9. Clause 8(c) of the 2019 CAO requires the AOC holder, as a condition of its certificate to ensure that each of its FCMs complies with each requirement ‘imposed by this CAO on flight crew licences.’

10. The words just quoted seem to me to involve the assumption that the requirements imposed on the licences of FCMs will include those imposed on a trial or full FRMS approval by CASA under Appendix 7 to the 2019 CAO. Otherwise, that which the AOC holder must ‘ensure’ will extend (apart from the general provisions of clause 16.1) only to matters where Appendices 1 to 6 are involved, and not to matters involving Appendix 7. Such a result is out of accord with the intention evident from clause 8(b). In any event, it would be very odd if the licences of the pilots had imposed upon them conditions consistent with the Appendices other than Appendix 7 of the 2019 CAO.

11. That view would suggest that clause 9.1 of the 2019 CAO intends that the ‘limits and requirements’ mentioned in it will, in a case where an approval under Appendix 7 is involved, include the limits and requirements specified in a trial or full FRMS implementation which CASA may approve. In that case, the Tribunal has jurisdiction to entertain the review. Not only must the AOC holder comply with those limits and requirements for an FCM as a condition of its certificate, but the FCM must do so as condition of the flight crew licences.

12. As to clause 10.2, it is difficult to say that limits and requirements for FCMs are mentioned in Appendix 7, although they would be mentioned in an FRMS approved by CASA under Appendix 7.

13. Clause 1.2 of the FRMS Approval Instrument is consistent with the effect I have found clause 9.1 of the 2019 CAO to have, although it does not so state. Taken by itself, clause 1.2 is also consistent with CASA having exercised its power of giving directions to the flight crew.

14. The remark in the Explanatory Statement, that the intention of the 2019 CAO is to provide a comprehensive regulatory framework, is also consistent with the 2019 CAO through clause 9.1 as I have construed it, making all Appendices to the 2019 CAO, including approvals by CASA given under Appendix 7, binding not only as a condition of the AOCs, but also as a condition of the licences of the flight crew.

    DECISION

15. For those reasons, in my opinion, the Tribunal has jurisdiction to entertain the review.

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

..................................[sgd]......................................

Associate

Dated: 4 September 2020

Date(s) of hearing:	18 June 2020
Date final submissions received:	31 July 2020
Counsel for the Applicant:	Mr P H d'Assumpcao
Solicitors for the Applicant:	Xenophon Davis
Counsel for the Respondent:	Mr I Harvey
Solicitors for the Respondent:	Legal and Regulatory Affairs Division, Civil Aviation Safety Authority
Solicitors for the Joined Party:	MinterEllison