Baker and Civil Aviation Safety Authority
[2004] AATA 1117
•27 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1117
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/109
GENERAL ADMINISTRATIVE DIVISION
Re: TIMOTHY FRANCIS BAKER
Applicant
And: CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Date: 27 October 2004
Place: Melbourne
Decision:The Tribunal affirms the respondent's decision, to renew the applicant’s licence subject to the condition endorsed on it.
(sgd) E. Fice
Member
CIVIL AVIATION – renewal of aircraft maintenance licence – failure to comply with statutory requirements for renewal of the licence - additional endorsed restriction – whether renewal should contain any restrictions – ultra vires Orders – unlawful Policy regarding Civil Aviation Safety Authority employees – duties and privileges of aircraft maintenance engineer licence – comparable work
Civil Aviation Act 1988
Civil Aviation Regulations 1988
Civil Aviation Order 100.90
Re Green and Australian Fisheries Management Authority [2004] AATA 426
Re Drake and Minister for Immigration and Ethnic Affair (No 2) (1979) 2 ALD 634
REASONS FOR DECISION
27 October 2004 Mr E. Fice, Member
1. Mr Baker, who is employed by the Civil Aviation Safety Authority (“CASA”) as a flying operations inspector (“FOI”), is also the holder of an aircraft maintenance engineer licence (“AME licence”) in the Group One Airframe category. In December 2003 Mr Baker sought renewal of his AME licence. Although CASA renewed Mr Baker’s AME licence, it did so with an endorsed restriction which limited Mr Baker to certifying for the completion of maintenance only in respect of daily or equivalent manufacturers' inspections. Mr Baker sought review of that decision and claims that the renewal of his AME licence should have been made without any restriction whatsoever.
2. Mr Baker appeared in person and Mr A. Anastasi, solicitor for CASA, appeared on behalf of CASA.
BACKGROUND
3. Mr Baker completed an engineering apprenticeship with Ansett Airlines in 1983. His trade was classified as a sheet metal worker. He achieved excellent results as an apprentice.
4. On 3 April 1991, Mr Baker was granted an Air Transport Pilot (Aeroplane) Licence and he is currently the holder of a grade one instructor rating on aeroplanes. He has also held a command instrument rating since December 1988. Although he began flying in about 1979, Mr Baker retained his interest in aircraft maintenance engineering; and between 1992 and 1994 he completed training for the issue of a Group One Airframe AME licence. The licence was granted to Mr Baker on 18 January 1994. On sitting the final examinations for his AME licence, Mr Baker was awarded 100 per cent in the subject Airworthiness Administration.
5. Mr Baker commenced employment with CASA as a FOI on 1 September 1997. He is currently a FOI in the General Aviation Branch of the Compliance Division. He is based in the Victoria/Tasmania Area Office at Moorabbin Airport.
6. Between 1998 and 2001, Mr Baker undertook further engineering studies, completing two theory subjects in the airframe category, relating to pressurisation systems and hydraulic systems, and a further subject in the engine categories relating to piston engine theory and construction. Mr Baker’s engineering experience includes working on the following aircraft types: Boeing 727, 737, 767, Fokker F27 and F28, Douglass DC-9, Cessna 152, 172, 310, 340, 182, Piper 31, 32, 34, 23 and Nomad . His flight crew licence is endorsed for numerous aircraft types, below 5700 kilograms maximum take off weight and above that figure.
7. Mr Baker’s AME licence is endorsed with an expiry date two years after its issue. This is in accordance with provisions that are set out in Regulation 32 of the Civil Aviations Regulations 1988 (“CAR”). Mr Baker submitted his licence for renewal in 1997, 1999 and 2001 and his licence, on each occasion, was renewed by a CASA delegate at the Moorabbin office without any restriction being endorsed on his licence.
8. It appears that since 2001 CASA has adopted a policy of having CASA officers in Canberra renew AME licences for CASA staff. The purpose of this policy is to ensure that there is no conflict of interest between the issuing officer and the applicant, particularly where those two persons are based at the same location.
9. By an application dated 10 December 2003, Mr Baker sought renewal of his AME licence on the ground that he had exercised the privileges of that licence for periods totalling not less than 6 months in the preceding 24 months and that he had provided those details for that period to the renewing officer. On his application form, Mr Baker detailed his employment history as “CASA flying operations inspector – conducted and certified for daily inspection – hold delegation CAR 38 – issued ASR on aircraft.”
10. Mr Baker’s application for renewal of his AME licence was dealt with by Mr R. McMaster, Section Head, Maintenance Personnel Standards. Mr McMaster required Mr Baker to provide him with evidence of having met the requirement to have exercised privileges of his licence for periods totalling not less than 6 months in the preceding 2 years. In response to that request, Mr Baker advised Mr McMaster that his application was also made on the basis that he had engaged in work that may be considered by CASA as comparable with the duties and privileges pertaining to his licence.
11. Mr McMaster renewed Mr Baker’s licence; but it contained the restriction that certification of maintenance under this licence is limited to that of daily or equivalent manufacturer’s inspections only.
PARTIES CONTENTIONS
12. CASA contends that Mr Baker was employed as a FOI in 1997 and, other than conducting and certifying daily inspections in the course of that employment, there is no evidence that Mr Baker exercised the privileges of his AME licence for a period of 6 months in the 24 months, preceding his application for renewal. This is despite the fact that Mr Baker’s AME licence was renewed by CASA’s Moorabbin office in 1997, 1999 and 2001. According to CASA, when Mr Baker applied for renewal of his licence on 10 December 2003, he did not satisfy the relevant CASA delegate that he had complied with the requirements set out in section 100.90, paragraph 7.3 of the Civil Aviation Orders (“CAO”), which provides:
7.3A licence may be renewed if the holder:
(a)in the preceding 24 months has exercised the privileges of the licence for not less than 6 months;
(b)has been engaged in work which may be considered by the Authority as comparable with the duties and privileges pertaining to his or her licence; or
(c)in the preceding 24 months has passed the Airworthiness Administration (AA) examination.
CASA says that Mr Baker had not provided to it any evidence that in the 24 months preceding the application for renewal of his AME licence, he had exercised the privileges of that licence for a period of not less than 6 months. In addition, CASA contends that Mr Baker has not engaged in work comparable with the duties and privileges pertaining to his AME licence. Accordingly, CASA contends that not only should Mr Baker’s licence not have been renewed upon application in December 2003, but CASA ought not to have reissued an AME licence to Mr Baker at all. If it was in fact open to CASA to renew Mr Baker’s AME licence, then CASA contends that the restriction placed upon that licence, namely that certification of maintenance under the licence be limited to that of daily or equivalent manufacturers' inspections only, is necessary to ensure the safety of air navigation. CASA relies on regulation 31(3) of the CAR which provides that CASA may, for the purpose of ensuring the safety of air navigation, include in an aircraft maintenance engineer licence an endorsement that the licence is issued subject to a condition set out in the endorsement or in a specified Part or Section of the Civil Aviation Orders.
13. Mr Baker contends that he has met the requirements s100.90, paragraph 7.3(a) of the CAO, for the reason that he had, on many occasions during the 24 months preceding the application for renewal, performed and certified for aircraft maintenance in the form of daily inspections and also that he had inspected aircraft and raised aircraft survey reports on matters relating to aircraft maintenance over at least the preceding 6 month period. Aircraft survey reports are raised under CAR 38 which provides:
(1)CASA may give directions relating to the maintenance of Australian aircraft for the purpose for ensuring the safety of air navigation.
(2)A direction is not binding on a person unless it has been served on a person.
(3)A person must not contravene a direction that is binding on the person.
(4)If a direction relating to an aircraft is binding on the holder of a certificate registration for the aircraft, the holder must take reasonable steps to ensure that the direction is brought to the attention of any person who is likely to fly, or issue a maintenance release for, the aircraft.
Penalty; 50 penalty units
14. Additionally, Mr Baker contends that he has complied with paragraph 7.3(b) of CAO 100.90, in that he had been engaged in work that may be considered by CASA as comparable with the duties and privileges pertaining to his AME licence. The comparable work Mr Baker says he engaged in related to daily inspections of aircraft and the issue of aircraft survey reports. He also compiled a questionnaire designed to test pilots' knowledge of maintenance requirements and the issue of maintenance releases.
CONSIDERATIONS
15. Although Mr Baker was granted an AME licence in January 1994, except for daily inspections, he has never undertaken the duties or exercised the privileges associated with that licence. He commenced his apprenticeship as an aircraft sheet metal worker in 1979 with Ansett Airlines, completing his apprenticeship in 1983. He continued to work with Ansett Airlines until 1986 as an unlicensed aircraft maintenance engineer in the airframe category. Between 1986 and 1994 he worked as a flying instructor, a chief pilot and a chief flying instructor in a number of Melbourne-based flying schools. Between 1992 and 1994 Mr Baker completed his AME training and was issued with Group One Airframe AME licence in 1994. Between 1994 and 1997 Mr Baker was employed by Southern Australia Airlines as a line pilot and as a Dash 8 Training and Checking Captain. After joining CASA in 1997, Mr Baker undertook further engineering studies and completed three additional aircraft maintenance engineering examinations. These examinations gave Mr Baker theory credits for additional airframe aircraft maintenance engineer licence endorsements relating to pressurisation and hydraulic systems. He also obtained a theory credit relating to aircraft piston engines required for an engine AME licence.
16. Since 1997, Mr Baker has been employed by CASA as a FOI. According to a CASA duty statement regarding that position, the duties of a FOI include:
(a)Conducting ground and air surveillance of operators and operations in accordance with prescribed schedules to ensure compliance with regulatory requirements;
(b)Investigating accidents, incidents, complaints or other reports and initiating any necessary action in regard to deficiencies or breaches of the legislation;
(c)Making assessments in relation to applicants for appointment as “approved persons”, “chief flying instructor” or “chief pilot” and conducting surveillance to ensure continued suitability for appointments;
(d)Conducting flight tests for the issue of pilot licences and operator certificates;
(e)Assessing the suitability of applicants for the issue of an air operator certificate;
(f)Conducting required checks of procedures, facilities and services and providing reports;
(g) Providing expert services to the industry on fee for service basis of concession requests, in accordance with a fixed schedule; and
(h)Undertaking air and ground training as required by CASA.
17. The qualifications required of a CASA FOI include:
(a)A current air transport pilot (aeroplane) licence with a command instrument rating; or
(b)Military equivalent – a qualified instrument rating – not a qualified (restricted) instrument rating – with instrument examiner or senior instrument rating examiner qualification desirable but not essential.
18. It is, in my opinion, significant that neither the duties nor the qualifications of a FOI require the person holding that position to either have any aircraft maintenance engineering qualifications or to exercise the duties or privileges which attach to holding an AME licence.
19. Much of the evidence centred on the operation of paragraph 7.3 of CAO 100.90. However, in order to understand the significance of that CAO, it must be read in conjunction with reg 32B of the CAR which provides that:
32B. An applicant for renewal of an aircraft maintenance engineer licence or approval of a change to a licence must, before the licence is renewed or the change to the licence is approved:
(a)pass the examinations; and
(b)produce the evidence of his or her practical experience and qualifications;
that CASA directs in Civil Aviation Orders or otherwise in writing.
20. Although it is difficult, if not impossible, to reconcile the words used in reg 32B of the CAR with s100.90, paragraph 7.3 of the CAO, it seems to me that an applicant for renewal of an AME licence must pass the examinations referred to in CAO 100.90, paragraph 7.3 and must produce evidence of his or her practical experience and qualifications as directed under CAO s100.90, paragraph 7.3. Therefore, although s100.90, paragraph 7.3 (a), (b) and (c) are expressed in terms of alternative requirements, when read together with reg 32B of the CAR, it seems that what is intended is that the requirements under paragraph 7.3 are not to be read disjunctively. Paragraphs 7.3(a) and 7.3(b) appear to be directions made pursuant to reg 32B(b) of the CAR, while paragraph 7.3(c) of the CAO appears to be a direction made under reg 32B(a) of the CAR. If that is correct, then an applicant for the renewal of such a licence must pass an airworthiness administration examination within the 24 months preceding the application for renewal and must produce evidence of practical experience and qualifications which demonstrates that the applicant has, in the 24 months preceding the application, exercised the privileges of the licence for a period of not less than 6 months or has been engaged in work which may be considered by CASA as comparable with the duties and privileges pertaining to his licence.
21. Therefore, to have his AME licence renewed, Mr Baker needed to demonstrate that he has satisfied the requirements set out in paragraph 7.3(a) or paragraph 7.3(b) of the CAO and to have passed the airworthiness administration examination within the 24 month period prior to his application for renewal. This is despite the fact that CASA apparently does not, on each occasion, insist that an applicant for renewal of a licence pass an airworthiness administration examination. I have more to say about that below.
22. In order to determine whether Mr Baker has met the requirements for renewal as set out in s100.90, paragraph 7.3(a) or 7.3(b), and 7.3(c) of the CAO, it is necessary to understand which parts of an aircraft constitute the airframe category and what the privileges are in respect of that category. Paragraph 2.1 of Appendix 1 to s100.90 of the CAO sets out the parts of an aircraft which constitute the airframe category and they include:
(a)aircraft structure – including engine mountings, cowlings and firewalls;
(b)control surfaces;
(c)helicopter dynamic components – excluding the engine and engine mounting gearboxes;
(d)flight control systems;
(e)hydraulic systems;
(f)pneumatic systems;
(g)air conditioning systems;
(h)pressurisation systems;
(i)airframe ice and rain protection systems;
(j)landing gear systems;
(k)fuel and liquid tanks and associated plumbing not forming part of the engine or engine lubricating systems;
(l)airframe fire extinguishing systems;
(m)cabin and cockpit furnishings;
(n)windshield clear vision systems;
(o)emergency equipment; and
(p)all airframe system controls.
23. Paragraph 2.2 of Appendix 1 to s100.90 of the CAO sets out the privileges which may be exercised by a person holding an airframe category AME licence. In essence, it provides that a person holding a airframe category AME licence may certify for the completion of maintenance within the airframe category, with limitations, including:
(a)inspections using a non‑destructive testing method;
(b)completion of a repair or modification that involved manual welding, including braised welding, which has been performed by the holder of a valid appropriate welding authority; and
(c)maintenance of components which are supplied as bench tested units and installed in aircraft but limited to the inspection, replacement and adjustment of parts normally adjustable or replaceable in service where the subsequent operation may be proved without the use of test equipment additional to that normally used for functional tests on the aircraft.
24. Specifically excluded are tasks which can only be performed by the licence holder if the licence holder is, or is employed by, the holder of a valid appropriate certificate of approval. Such tasks include the repair, modification or assembly of a number of listed components; essentially those which require specialised techniques or which may involve affecting the structure of the aircraft and the disturbing of individual parts of units which are supplied as bench-tested units, where subsequent functioning must be proved using test equipment additional to that used for normal functional testing or trouble‑shooting checks on the aircraft.
25. In the application for renewal of his AME licence, Mr Baker relied on the matters set out in paragraph 7.3(a) and 7.3(b) of CAO 100.90. As far as paragraph 7.3(a) is concerned, other than conducting daily inspections on aircraft, Mr Baker had some difficulty in identifying precisely the privileges of his AME licence which he had exercised for periods totalling not less than 6 months in the preceding 24 months. Principally, Mr Baker’s evidence was that he frequently conducted daily inspections of aircraft in the course of conducting his duties as a FOI. There was no dispute that carrying out an inspection for the purpose of ascertaining whether an aircraft is in a fit state for flying constitutes maintenance under the CAR.
26. In addition, Mr Baker said that, using his delegated power under reg 38, he had inspected Australian registered aircraft for defects and had raised a number of aircraft survey reports indicating these defects. reg 38 provides:
(1)CASA may give directions relating to the maintenance of an Australian aircraft for the purpose of ensuring the safety of air navigation.
(2)A direction is not binding on a person unless it has been served on the person.
(3)A person must not contravene a direction that is binding on the person.
(4)If a direction relating to an aircraft is binding on the holder of the certificate of registration for the aircraft, the holder must take reasonable steps to ensure the direction is brought to the attention of any person who is likely to fly, or issue a maintenance release for, the aircraft.
27. Three aircraft survey reports were in evidence. Two of those were raised by Mr Baker on 7 October 2003, while the third report was raised by Mr Baker on 19 June 2003.
28. All of the items set out in the aircraft survey reports are items which were ascertained by Mr Baker as requiring further assessment and rectification if necessary. He arrived at this conclusion by visual inspection only of the airframes of the three aircraft involved. He did not exercise any privilege of his AME licence other than to identify possible defects or damage to those aircraft. I have also noted that Mr Baker signed the aircraft survey reports as an airworthiness officer. I did not understand him to hold an airworthiness inspector or airworthiness surveyors’ position with CASA, although his uncontroverted evidence was that he was a CASA delegate for the purposes of reg 38. It appears that the delegation may have been intended to only be given to airworthiness officers, although no evidence was put before me on that point.
29. CASA submits that although Mr Baker has performed maintenance by conducting daily inspections, it is not maintenance comparable with the duties and privileges pertaining to his AME licence because it is maintenance involving only a basic visual external/internal inspection of an aircraft. CASA also submitted that a daily inspection of an aircraft is something which the holder of a pilot licence is authorised to perform, under Schedule 8 of the CAR. That is undoubtedly correct. Also, it could be said that it is not possible to determine whether Mr Baker, when conducting a daily inspection in his role as a FOI, was doing so because he was the holder of a pilot licence or because he held an AME licence. Whichever way it is examined, it is obvious that in conducting a daily inspection, Mr Baker has only exercised one of the numerous privileges which attach to his AME licence. In my opinion, that is not sufficient to satisfy the requirements set out in reg 32B and paragraph 7.3 of s100.90 of the CAO. I have come to that conclusion because I accept that the intention underlying the requirements established by reg 32B and paragraph 7.3 of s100.90 of the CAO is that applicants for the renewal of an AME licence are required to demonstrate that they are current and proficient in the areas covered by the privileges of their respective licences and not merely one privilege which may also be exercised by a pilot who has no engineering qualifications whatsoever.
30. Much of the evidence given on behalf of Mr Baker dealt with the requirements of paragraph 7.3(b) of CAO 100.90 which provides that a licence may be renewed if the holder has been engaged in work which may be considered by the Authority (CASA) as comparable with the duties and privileges pertaining to his or her licence.
31. Mr Baker, in the alternative, claimed he had performed comparable work by conducting daily inspections, issuing aircraft survey reports and compiling the questionnaire dealing with maintenance releases. The conduct of a daily inspection of an aircraft is maintenance, and therefore cannot, strictly speaking, be regarded as comparable work. Nevertheless, it is also CASA’s view that the performing of daily inspections is not maintenance comparable with the duties and privileges pertaining to an AME licence because it relates to maintenance involving a basic visual external/internal inspection of an aircraft. According to CASA, this is the reason why the regulation permits pilots, with no maintenance experience, training or qualifications, to perform a daily inspection. Furthermore according to CASA, the issue of aircraft survey reports cannot be classified as work which is comparable with the duties and privileges pertaining to an AME licence because the task only involves identifying obvious and basic defects that could be identified by a pilot performing a daily inspection. CASA also maintains that the preparation of questions in relation to a maintenance release is not an activity comparable with duties and privileges pertaining to an AME licence.
32. Six employees of CASA, all of whom hold an AME licence endorsed with a variety of Groups, gave evidence on behalf of Mr Baker. All of these witnesses have significant experience as aircraft maintenance engineers, many of them having held their licences in excess of 20 years. They are employed by CASA as airworthiness surveyors, airworthiness inspectors or senior airworthiness inspectors These witnesses, although they do not perform maintenance in the course of their employment with CASA, were said to be involved in the entire gambit of the maintenance requirements under the Civil Aviations Regulations. The duties of an airworthiness inspector, according to Mr E. Edwards, who is so employed by CASA, include:
(a)routinely or daily, inspecting aircraft;
(b)issuing notices requiring corrective action;
(c)processing applicants for certificates of approval
(d)inspecting aircraft and assessing aircraft maintenance records for issue of certificates of airworthiness;
(e)inspecting and evaluating maintenance facilities including tooling, maintenance data and systems of quality control;
(f)assessing applications for special flight permits;
(g)approving the modification or repair to an aircraft;
(h)evaluating and approving minimum equipment lists;
(i)identifying breaches of the maintenance requirements in the Civil Aviation Regulations when conducting airworthiness inspections of operators or maintainers of aircraft; and
(j)assessing schedules of experience submitted by applicants for the grant of an AME licence or rating.
This evidence was not challenged.
33. Evidence was also given by Mr M.J. Sonneveld, who was employed for 14 years as an air safety investigator with the Bureau of Air Safety Investigations. Mr Sonneveld is the holder of an AME licence which was issued in 1981, although he has been employed as a pilot since 1969, in military and civil aviation. He is currently employed as a pilot but does conduct some maintenance of a simple nature on the helicopter which he flies. His AME licence has been renewed by CASA on many occasions often because he was engaged in work considered to be comparable with the privileges and duties of an AME licence.
34. The aircraft maintenance engineers employed by CASA, who gave evidence for Mr Baker, except for Mr J. Hammond, have not had any “hands on” maintenance experience since commencing work with CASA. Mr Hammond purchased his own aircraft in 2000 and he has conducted most of the maintenance work on that aircraft since its purchase. Nevertheless, all of the airworthiness inspectors and surveyors in the Victoria/Tasmania Area Office have had their licences renewed on the basis that they have been engaged in work which is comparable with the duties and privileges pertaining to their licences. Furthermore, all of these engineers were of the opinion that the maintenance work that Mr Baker claimed that he had carried out, being the daily inspections, the issuing of aircraft survey reports and the preparation of a questionnaire in respect of the maintenance release, was work which may be considered as comparable with the duties and privileges pertaining to his licence.
35. Although it is true that the airworthiness inspectors employed by CASA do not conduct “hands on” maintenance in the course of their duties, it is clear that their duties, save for conducting routine or daily inspections, are quite different from the duties and privileges exercised by a FOI. It is reasonably accurate to describe the work conducted by CASA airworthiness inspectors as comparable with the duties and privileges of an AME licence. Other than conducting routine or daily inspections, it is not correct to describe the work conducted by a FOI as comparable with the duties and privileges of an AME licence. The different job descriptions make that quite plain.
36. Mr Baker also pointed to the fact that he had been involved in conducting flying operation surveillance. He drew attention to the manual dealing with flying operation surveillance procedures, and in particular Form ASSP176, which deals with the inspection of aircraft documentation and equipment. However, as CASA pointed out, the majority of items on that checklist are to be addressed by airworthiness staff and not by a FOI. In any event, as far as the FOI is concerned, inspection is limited to ensure that certain items are located in the aircraft and that they appear, upon external inspection, to be serviceable. I do not believe that this claim by Mr Baker takes the matter any further.
37. Mr Baker pointed out that CASA has issued a policy regarding the renewal of licences of its staff. CASA said that the application of this policy to airworthiness inspectors/surveyors provided what can properly be described as “automatic renewal” for those staff. In fact, the AME Licensing Procedures Manual, which embodies CASA’s policy, has undergone a number of changes since 1999 with regard to those employees of CASA that are eligible for renewal of their licence on the basis that their work with CASA is comparable with the duties and privileges of an AME licence.
38. Version 4.0 of the AME Licensing Procedures Manual, which is dated August 1999, provides as follows:
7.9.4 Renewing AME licences held by CASA staff
Only airworthiness inspectors or engineers (AWOs) may have their AME licence renewed because of their official duties. Refer to CAO 100.90, paragraph 7.3(b) for more information.
The renewal of these officers’ AME licences must be approved by the officers’ managers. The managers must hold an appropriate delegation.
39. The evidence was that in 2002, CASA’s policy regarding the renewal of AME licences was significantly altered. Version 4.5 of the AME Licensing Procedures Manual, dated December 2003, provides as follows:
7.5.3 Who is eligible for a renewal?
AME Licence holders who comply with the requirements of CARs 32A and 32B, and CAO 100.90 paragraph 7 may have their licences renewed – that is, persons who, during the previous two years have:
·Exercised the privileges of their licences for periods totalling not less than 6 months in the 24 months immediately preceding the licence expiry date
or
·Passed the AA examinations within the 24 months immediately preceding the licence expiry date
or
·Been engaged in work that is comparable with the duties and privileges of an AME licence.
The latter applicants include:
·Engineering supervisory, management and planning staff employed by the holder of a Certificate of Approval
·Flight crew, including flight engineers
·AME Examiner Authority holders who are employed by a C of A holder
·CASA AWIs, and airworthiness engineers
·Air safety inspectors
·Australian LAMEs who reside and work overseas in contracting states and are employed by the holder of authorisation equivalent of an Australian C of A in the Contracting State
·Teachers who are employed by at TAFE or a CAR30 training organisation to teach aircraft maintenance subjects and who have been employed full time in the civil aviation industry as a LAME for a continuous minimum period of ten (10) years prior to becoming a teacher.
·Civilian LAME contracted exclusively to defence forces to perform maintenance on military aircraft being maintained to military standards.
·Serving members of the ADF employed to perform maintenance on military aircraft being maintained to military standards.
·Civilian LAME contracted exclusively to defence forces to perform maintenance on military aircraft being maintained to civilian standards.
40. However, in April 2004, CASA deemed that the policy was inappropriate and removed the reference to flight crew. Notwithstanding that amendment, at the time that Mr Baker applied for a renewal of his AME licence in December 2003, CASA’s policy included the automatic renewal of AME licences held by flight crew for the reason that it considered their work was comparable with the duties and privileges of an AME licence. Furthermore, the Licensing Procedures Manual at paragraph 7.5.3 adopts the words of paragraph 7.3(a)-(c) of CAO 100.90. The CAO, on its face, provides that sub‑paragraphs (a)-(c) are to be treated as alternatives. In other words, an AME licence may be renewed if the holder fulfils the requirements of any one of those sub‑paragraphs. However, it is apparent from reg 32B which is the basis for the CAO, that an applicant for renewal of an AME licence must pass the examinations which CASA directs in Civil Aviation Orders or otherwise in writing and must produce in writing evidence of his or her practical experience and qualifications.
41. Regulation 5 gives CASA the power to issue any direction, instruction or notification or give any permission or approval or authority by way of Civil Aviation Orders. Furthermore, pursuant to s 9 of the Civil Aviation Act 1988 (“the Act”), CASA is empowered to conduct the safety regulation of civil air operations in Australian territory in accordance with the Act and the regulations. It necessarily follows that any CAO must be drafted in accordance with the power granted under the relevant regulation. It is, in my opinion, ultra vires the CARs to issue CAOs which exceed the power granted by the relevant regulation.
42. In my opinion, paragraph 7.3 of CAO 100.90, in its current form, is ultra vires or beyond the power granted by CAR 32B. Although it is permissible to regard paragraph 7.3(a) and 7.3(b) as alternatives, it is not permissible to include paragraph 7.3(c) as an alternative. In other words, under the current CARs, the airworthiness administration exam must be passed on every occasion that an AME licence is renewed.
43. CASA has of course adopted paragraph 7.3 of CAO 100.90 in its policy. This is clearly expressed in paragraph 7.5.3 Version 4.5 of the AME Licensing Procedures Manual dated December 2003. The relationship between government policy and review by the Tribunal was explored in detail by Brennan J (President) in Re Drake and Minister for Immigration and Ethnic Affair (No 2) (1979) 2 ALD 634, where his Honour said, at 640-645:
These considerations warrant the Tribunal’s adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary.
…
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minster, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances in the particular case.
Although Re Drake’s case dealt with ministerial policy, the principles espoused in that case have been applied to non‑ministerial policy (see Re Green and Australian Fisheries Management Authority [2004] AATA 426).
44. Because CASA’s policy regarding the renewal of AME licences adopts the words used in paragraph 7.3 of CAO 100.90, it is, in my opinion, unlawful. Accordingly, it should not be applied to the renewal of AME licences, whether they be in respect of CASA staff or otherwise.
CONCLUSION
45. Mr Baker’s application for renewal of his AME licence was made principally on the grounds that he had met the statutory requirements for renewal of that licence as set out in paragraph 7.3(a) or, alternatively, paragraph 7.3(b) of CAO 100.90. However, Mr Baker’s evidence of having exercised the privileges of his licence for not less than 6 months in the preceding 24 months falls substantially short of the requirements set out in paragraph 7.3(a) of CAO 100.90. The performance of daily inspections on an aircraft, although regarded as maintenance for the purposes of the CAR, can be conducted by a pilot who does not hold an AME licence. In fact, from the evidence, it is difficult to distinguish whether, in conducting daily inspections on aircraft, Mr Baker did so as a pilot about to embark upon a flight in that aircraft or whether he was exercising one of the many privileges which attach to an AME licence. The issue of three aircraft survey reports and the preparation of a questionnaire regarding maintenance releases do not take the matter much further. As Mr Edwards pointed out in his affidavit, Mr Baker has not demonstrated that he has conducted any non-destructive testing inspections, completed any repairs, assembly or modifications, and has not conducted any maintenance of components during the requisite period. Accordingly, Mr Baker does not satisfy the requirements set out in paragraph 7.3(a) of the CAO 100.90.
46. In the alternative, Mr Baker submitted that the work that he was engaged to do as an employee of CASA was comparable with the duties and privileges pertaining to his AME licence. However, it is quite clear from the CASA duty statement regarding the position of a FOI that the duties conducted by Mr Baker are vastly different from those of an airworthiness inspector employed by CASA, save for routine or daily inspections of aircraft; and they do not require him to exercise the substantial privileges set out in Appendix 1 to CAO 100.90. When one examines the duties of an airworthiness inspector/surveyor, it is readily apparent that those duties, while they do not require “hands on” maintenance by the airworthiness inspector/surveyor, are clearly comparable with the duties and privileges pertaining to an AME licence. Mr Baker does not satisfy the requirements set out in paragraph 7.3(b) of the CAO 100.90.
47. Finally, there is the question of the policy adopted by CASA regarding the renewal of AME licences which is set out in the AME Licensing Procedures Manual. Unfortunately, the procedures set out in that manual are based on the erroneous assumption that paragraph 7.3 of CAO 100.90 is a lawful direction made pursuant to reg 32B of the CAR. Because reg 32B provides that an applicant for the renewal of an AME licence must, before the licence is renewed, pass the examination that CASA directs in the CAO and produce the evidence of his or her practical experience and qualifications as directed by CASA in the CAO, the direction set out in paragraph 7.3 of CAO 100.90, which treats the requirements disjunctively, is an unlawful exercise of CASA’s power prescribed by the CARs and the Act. Because it is unlawful, the Tribunal cannot apply that policy to the renewal of Mr Baker’s licence.
48. I have no hesitation in affirming CASA’s decision to renew Mr Baker’s AME licence with the restriction that his licence be limited to that of a daily or equivalent manufacturer’s inspection only. This is in accordance with reg 31(2).
49. It must be apparent to CASA that paragraph 7.3 of CAO 100.90 is defective in its current form and the direction contained in that paragraph should be re‑written in order to comply with the requirements for the renewal of an AME licence set out in reg 32B of CAR. CASA should also amend its policy as set out in the Licensing Procedures Manual so as to comply with the requirements of reg 32B.
I certify that the forty‑nine [49] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr E. Fice, Member
(sgd) Catherine Lake
ClerkDates of Hearing: 1—2 September 2004
Date of Decision: 27 October 2004
Solicitor for the applicant: Nil — IN PERSONSolicitor for respondent: Mr A. Anastasi, of Civil Aviation Safety Authority
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