Barnes and Civil Aviation Safety Authority

[2015] AATA 797

Barnes and Civil Aviation Safety Authority [2015] AATA 797 (13 October 2015)

Division:  GENERAL DIVISION

File Number:  2015/3391

Re:  DAVID BARNES

APPLICANT

And:CIVIL AVIATION SAFETY AUTHORITY

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  13 October 2015

Place  Melbourne

The Tribunal decides that;

1.the Tribunal has jurisdiction to review a decision of a delegate of the respondent dated 15 June 2015 refusing the applicant’s application for an extension of the period for which a class 2 medical certificate is in force; and

2.although the period for which the class 2 medical certificate was in force expired on 11 August 2015, the application for review is not, on the evidence available at this stage of the proceeding, futile.

…[sgd] S A Forgie….

Deputy President

CATCHWORDS

AVIATION – PRACTICE AND PROCEDURE - JURISDICTION – refusal to extend period for which medical certificate in force – whether refusal to extend a variation of an authorisation – jurisdiction.

PRACTICE AND PROCEDURE – STAY OF OPERATION OF DECISION – limits of power to order stay – do not extend to powers given to Tribunal after reviewing merits of decision on substantive application,

LEGISLATION
Acts Interpretation Act 1901; section 15AB
Administrative Appeals Tribunal Act 1975; sections 3, 25, 41, 42B, 43
Civil Aviation Act 1998; sections 3, 20AB, 30A, 30DY, 30DZ, 31, 98

Civil Aviation Safety Regulations 1998; regulations 11.055, 11.056, 11.060, 11.065, 11.067, 11.068, 11.070, 11.071, 11.073, 11.077, 11.120, 11.125, 61.010, 61.040, 61.410, 61.505, 67.155, 67.180, 67.195, 67.200, 67.205, 67.210, 67.215, 141.035, 142.040, 201.004
Civil Aviation Legislation Amendment (Flight Crew Licensing and Other Matters) Regulation 2013; regulation 4 and Schedule 1; Item 386
Civil Aviation Legislation Amendment (Miscellaneous) Regulation 2013; regulation 4, Schedule 1, Item 105
Civil Aviation and Civil Aviation Safety Amendment Regulations 2011 (No. 2); regulation 3, Schedule 1, Item [258]

CASES

Allied Asia Holdings (Aust) Pty Ltd v Australian Securities and Investments Commission [2002] FCA 566
Civil Aviation Safety Authority v Hotop [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551; 41 AAR 192
Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80; 31 ALR 571; 3 ALD 161
Duncan v Companies Auditors Liquidators Disciplinary Board [2006] FCA 1747; (2006) 155 FCR 572; 44 AAR 253; 93 ALD 401
Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169;105 ALR 301; 25 ALD 545

Re Barnes and Civil Aviation Safety Authority [2012] AATA 756

Re Barnes and Civil Aviation Safety Authority [2015] AATA 272

Re Hogan and Civil Aviation Safety Authority [2004] AATA 1090; (2004) 84 ALD 707; 39 AAR 440
Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114
Re XTWK and Australian Securities and Investments Commission [2007] AATA 1890; (2007) 98 ALD 131
Yolbir v Administrative Appeals Tribunal [1994] FCA 910; (1994) 48 FCR 246; 19 AAR 15; 33 ALD 8

OTHER MATERIAL

Fundamental Legal Conceptions as Applied in Judicial Reasoning, Wesley Newcomb Hohfeld, 4^th edition, 1919, 4^th printing 1966, Yale University Press
Explanatory Statement to the Civil Aviation Legislation Amendment (Flight Crew Licensing and Other Matters) Regulation 2013

REASONS FOR DECISION

1. Mr David Barnes holds a Private Pilot (aeroplane) Licence (PPL).  On 10 May 2015, he applied for an extension of the class 2 medical certificate that he held and that was due to expire on 11 August 2015.  A delegate of the Civil Aviation and Safety Authority (CASA), decided on 15 June 2015 to refuse his application.  Mr Barnes has lodged an application for review of that decision but CASA has submitted that the Tribunal does not have jurisdiction to review its decision.  After hearing submissions by Mr Barnes and Ms Denise Logue, who assisted him, as well as by Mr Carter made on behalf of CASA, I have decided for the reasons below that Mr Barnes is entitled to make an application for review of the decision.  Consequently the Tribunal does have jurisdiction to review it.

   BACKGROUND

1. In September 2009, Mr Barnes advised his previous Designated Aviation Medical Examiner (DAME), Dr Johnston, that he had been diagnosed as suffering from diabetes.  Mr Barnes was also receiving treatment for major depression, anxiety and panic disorders in or about January 2010.  On 6 May 2010, CASA issued a class 2 medical certificate to Mr Barnes.  That certificate was valid for 12 months.  Mr Barnes applied for its renewal and underwent a further examination with his DAME on 28 October 2010.  A renewal was granted on 30 June 2011 and a further class 2 medical certificate was issued for 12 months with effect from 28 October 2010.  Mr Barnes applied to the Tribunal for review of CASA’s decision and the Tribunal affirmed the decision on 1 November 2012.[1] 

   [1] Re Barnes and Civil Aviation Safety Authority [2012] AATA 756; Senior Member Fice

1. The second class 2 medical certificate expired on 28 October 2011 and Mr Barnes took no further steps in relation to a medical certificate until he underwent an examination by a different DAME, Dr Pape.  He applied for a third class 2 medical certificate on 11 August 2014.  CASA issued him with a class 2 medical certificate that was valid until 11 August 2015.  It did so on 30 October 2014. 

1. On 17 November 2014, Mr Barnes applied to the Tribunal for review of CASA’s decision to issue the class 2 medical certificate for a period of only 12 months rather than for two years.  On 29 April 2015, a differently constituted Tribunal decided that it did not have jurisdiction to review that decision.[2]  Mr Barnes had not been refused a class 2 medical certificate and nor had that medical certificate been issued subject to a condition he had not sought.

   [2] Re Barnes and Civil Aviation Safety Authority [2015] AATA 272; Senior Member Fice

1. On 10 May 2015, some three months before his third medical certificate expired, Mr Barnes applied for an extension of that certificate for a further 12 months from 11 August 2015 when it was due to expire.  A delegate of CASA refused his application on 15 June 2015.  He based his decision on the conclusion that there were sound clinical and medical certification reasons why Mr Barnes’ class 2 medical certificate had been issued for a period of 12 months.  Those reasons included Mr Barnes’ risk profile as a consequence of his history of diabetes and ongoing medication and what was considered to be in the interests of ensuring air safety in light of the Clinical Practice Guidelines published by Avmed. 

THE SUBMISSIONS

1. On behalf of CASA, Mr Carter submitted that the Tribunal does not have jurisdiction to review its decision to refuse Mr Barnes’ application for an extension of the time for which his class 2 medical certificate remains in force.  In essence, he submitted, the length of time for which an authorisation, including a medical certificate, remains in force is not a condition of the authorisation.  He relied on the decision of the Tribunal in Re Hogan and Civil Aviation Safety Authority.[3] 

   [3] [2004] AATA 1090; (2004) 84 ALD 707; 39 AAR 440; Downes J, President, and Air Marshall Gration (Retd), Member

1. Mr Carter submitted that a more recent decision by Senior Member Fice in Re Barnes and Civil Aviation Safety Authority[4] had proceeded on an incorrect premise in characterising a refusal to extend a medical certificate as a refusal to vary it.  Particular provision is made in r 11.125 for the holder of an authorisation, to apply for its variation.  An extension of Subpart 11.B of Civil Aviation Safety Regulations 1998 (CASR), which applies to an application for an authorisation, applies equally to an application for a variation.  Regulation 67.210 provides separately for an application for an extension of the period for which a medical certificate remains in force.  The language of r 67.210 is not that of variation but of extension. 

   [4] [2015] AATA 272

1. Even if the Tribunal does have jurisdiction to review the decision to refuse to extend the period for which the medical certificate is in force, the application for review is futile.  It expired on 11 August 2015.  Citing Civil Aviation Safety Authority v Hotop[5] (Hotop), Mr Carter submitted that it is theoretically possible for the Tribunal to extend the term during which the medical certificate remains in force but doing so would raise a number of potential concerns.  Among them were that any order to that effect would be retrospective, Mr Barnes could remedy his lack of a medical certificate by applying for another under r 67.180, that extending the term would circumvent the need for him to apply for another and so avoid payment of the relevant fee and he has provided no evidentiary basis on which the term should be extended.

   [5] [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551; 41 AAR 192; Siopis J

1. Mr Barnes addressed various issues relating to the merits of his application for an extension of his class 2 medical certificate.  He had, he submitted, complied with what was required of him by the CASR.  CASA has refused his application for an extension and therefore it is reviewable.

CONSIDERATION

Right to apply to the Tribunal

1. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that:

   “An enactment may provide that applications may be made to the Tribunal:

   (a)for review of decisions made in the exercise of powers conferred by that enactment; …”

   An “enactment” means both an Act, such as the Civil Aviation Act 1998 (CA Act), and an instrument made under an Act, such as the CASR.[6]  Both the CA Act and the CASR make provision for applications to be made to the Tribunal.

   [6] AAT Act; s 3(1)

   A.        The CA Act

1. Section 31(2) of the CA Act provides that:

   “Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision.”

The word “decision” has the same meaning as in the AAT Act.[7]  Section 3(3) of the AAT Act provides that:

[7] CA Act; s 31(1)

“Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:

(a)making, suspending, revoking or refusing to make an order or determination;

(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)imposing a condition or restriction;

(e)making a declaration, demand or requirement;

(f)retaining, or refusing to deliver up, an article; or

(g)doing or refusing to do any other act or thing.”

1. The expression “reviewable decision” is defined in s 31(1) of the CA Act to mean:

   “(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 demerits points scheme).”

   B.       The CASR

1. Part 201 of the CASR provides for the review of decisions.  An application may be made to the Tribunal for the review of a decision of CASA mentioned in table 201.004 set out in r 201.004(2).[8]  Items 1 and 2 of that table are relevant in this case:

   [8] CASR; r 201.004(2)

“Table 201.004  Reviewable decisions

Item

A decision …

1

under a provision of these Regulations:

(a)      refusing to grant or issue an authorisation; or

(b)      cancelling or suspending an authorisation otherwise than on the application of the authorisation-holder; or

(c)      varying an authorisation otherwise than on the application of the authorisation-holder; or

(d)      refusing to vary an authorisation

2

under a provision of these Regulations imposing a condition on, or varying a condition of, an authorisation otherwise than on the application of the authorisation-holder”

1. Provided a person has received a decision that comes within one of the descriptions given in the provisions I have set out in either the CA Act or the CASR, he or she may lodge an application for its review in the Tribunal.

1. Regulation 201.004(3), (4) and (5) also provide for the review of certain decisions made by an authorised person,[9] an examiner,[10] an instructor[11] or a holder of an approval under rr 61.040,[12] 141.035[13] or 142.040.[14]  The decision in this case has not been made by any of those persons but by CASA.

   [9] An “authorised person” is a person who is appointed under r 201.001 to be an authorised person for the CASR: CASR; r 1.004 and Dictionary, Part 1.

   [10] An “examiner” is a flight examiner or a flight engineer examiner: CASR; r 61.010

   [11] An “instructor” is a flight instructor, a simulator instructor or a flight engineer instructor: CASR; r 61.010.

   [12] Approval relating to flight crew licensing: CASR; Part 61.

   [13] Approval relating to recreational, private and commercial pilot flight training, other than certain integrated training courses under CASR; Part 141.

   [14] Approval relating to integrated and multi-crew pilot flight training, contracted recurrent training and contracted checking: CASR; Part 142.

The Tribunal’s jurisdiction to review a decision

1. A right given by the law to a person necessarily means that there must be a duty or obligation imposed on another.[15]  Although that duty or obligation has not been expressly conferred upon the Tribunal, provisions of the AAT Act show that the duty or obligation must have been imposed on it by implication.  Those provisions confer powers upon it to determine particular issues relating to, or aspects of, an application or review of a decision that is the subject of an application for review.

   [15] See Fundamental Legal Conceptions as Applied in Judicial Reasoning, Wesley Newcomb Hohfeld, 4^th edition, 1919, 4^th printing 1966, Yale University Press at 35-60

Has Mr Barnes received a decision described in the CA Act or the CASR provisions?

1. In the Attachment to these reasons, I have summarised various provisions that regulate the granting of a PPL and medical certificates.  That summary forms part of these reasons.  It shows the pattern of regulation adopted by Parliament in relation to authorisations generally but, more particularly, in relation to authorisations that are medical certificates.  In so far as authorisations generally and medical certificates in particular are concerned, that pattern is made up of distinct threads.  In the case of the latter, the threads are the application for the medical certificate, the grant or otherwise of the medical certificate, the imposition of conditions and the period for which the medical certificate is in effect.  Each thread comprises one or more strands allowing for different factual scenarios that arise.  While there are occasions on which a strand may be found in more than one thread, the threads remain distinct from each other.[16] 

   [16] An example is found in r 67.190.  It provides for reconsideration of a decision to refuse to issue a medical certificate to a person or to issue a medical certificate subject to a condition not sought by that person.  The two decisions are regulated quite separately under the CASR and provision is made separately in Items 1(a) and 2 of table 201.004 for applications to be made to the Tribunal for their review.  In r 67.190, though, the two come together when Parliament provides for their reconsideration by CASA.  Another is found in Divisions 3C and 3D of Part III of the CA Act when read with provisions such as rr 11.070 to 11.077 of the CASR relating to the imposition of conditions.  Divisions 3C and 3D provide for suspension or cancellation of a holder’s civil aviation authorisations if the holder incurs a specified number of demerit points.  Those demerit points may be accumulated for breach of conditions of an authorisation: see [82] below.  Despite that, a decision to impose the conditions remains a decision quite separate from the consequences of the breach of those conditions.

1. I give as an example of the separate threads, the provisions relating to the grant of a medical certificate and the imposition of conditions in relation to that medical certificate.  Regulation 67.180 regulates the grant or otherwise of a medical certificate.  Conditions subject to which a medical certificate may be granted are regulated quite separately by reference to rr 11.055, 11.056 and 11.067 in Subpart 11.BA and rr 67.195 and 67.200 in Subpart 67.C.  The decision-making processes in each are quite separate and that is reflected in the separate identification of those decisions as decisions in respect of which an application may be made to the Tribunal.  The former are the subject of Item 1(a) and the latter of Item 2 of table 201.004 under r 201.004. 

1. As I have said, each thread is made up of separate strands.  Item 2 of table 201.004 illustrates that point.  Rather than permitting an application to be made to the Tribunal for review of all decisions imposing a condition on an authorisation, Item 2 excludes a condition imposed on, or a variation of a condition already imposed on, an authorisation if that imposition or variation was sought by the authorisation holder. 

1. That means that I must look closely at the various decisions that are described in Item 1 of table 201.004 to see whether the decision made in this case is one of the decisions described in that Item.  Putting aside the qualification of cancellations, suspensions and variations sought by the authorisation holder which are not reviewable, they are:

   (1)a refusal to grant or issue an authorisation;

   (2)a cancellation or suspension of an authorisation;

   (3)a variation of an authorisation; and

   (4)a refusal to vary an authorisation.

1. Each decision is categorised separately and, looking at the structure of the CASR, it is tempting to suggest that the separate categorisation necessarily reflects distinctions between the provisions regulating each.  In some instances, that is the case.  I have already referred to the distinctions between those regulating the grant and refusal of applications for an authorisation on the one hand and the imposition of conditions on the other.  They are distinctions reflected in Items 1(a) and 2 of table 201.004.

1. In other instances, the separate categorisation of the decisions that are reviewable do not necessarily reflect precisely provisions regulating the making of decisions of that type. An example arises in the context of the regulatory framework relating to cancellation, suspension or variation of an authorisation, including a medical certificate. Regulation of cancellation, suspension or variation of an authorisation is the subject of Subpart 11.D of the CASR and Division 3D of Part III of the CA Act.[17] Beginning with Division 3D of Part III, it permits CASA to suspend or cancel an authorisation on its own volition but not to vary it. It does so in the context of the demerit system provided for in Part III of the CA Act and regulated in Part 13 of the CASR. No provision is made for CASA to vary an authorisation in Division 3D or elsewhere. Conditions imposed on an authorisation are a different matter for their variation by CASA on its own volition is provided for in r 11.067 and on application of the holder of the authorisation under r 11.125 when read with r 11.120.

[17] See [80]-[83] below

1. Subpart 11.D applies to applications made by the holder of an authorisation to vary, suspend or cancel an authorisation. That Subpart does not authorise CASA to vary, suspend or cancel an authorisation in the absence of an application by the holder of the authorisation for a variation, suspension or cancellation. Does that mean that CASA is limited to either making the variation, suspension or cancellation in the terms sought by the authorisation-holder or refusing it or does CASA have broader powers? I think it is the case that CASA has broader powers. That follows from the fact that r 11.125, which provides for an application to be made for a variation of an authorisation, specifically provides that Subpart 11.B and rr 11.055, 11.056, 11.060 and 11.065 apply to a variation of an authorisation as they do to an application for an authorisation. Regulation 11.055 specifies the circumstances in which CASA may grant an authorisation and the matters to which it must have regard in doing so. I have touched on these at [60]-[61] below. Consideration of the relevant matters may, or may not, lead CASA to vary, suspend or cancel an authorisation precisely in the terms sought by the authorisation-holder.

1. In light of that, what are the decisions that come within Item 1 and particularly within Items 1(b) and (c)?  Reviewable decisions include a decision to cancel or suspend or to vary an authorisation “otherwise than on the application of the authorisation-holder”.  The same qualification appears in Item 2.  As I have said, CASA has power to cancel or suspend an authorisation of its own volition under Part 13 but does the qualification to Items 1(b) and (c) and 2 mean that a decision by CASA on an application made by an authorisation-holder under r 11.125 is excluded from being a reviewable decision?  On one view, it is excluded because any decision that CASA may make is made “on the application of the authorisation-holder”.  Another view is that the qualification is intended to exclude only those decisions that are made in the terms sought by the authorisation-holder. 

1. Relying on s 15AB(1)(b) of the Acts Interpretation Act 1901, I have looked to the Explanatory Statement accompanying the Civil Aviation Legislation Amendment (Flight Crew Licensing and Other Matters) Regulation 2013[18] (2013 Amendment Regulations) which amended r 201.004 by repealing Items 1 and 2 and replacing them.[19]  That Statement reads:

   “Item [386] makes minor editorial amendments to items 1 and 2 of table 201.004 and excludes, from the list of reviewable decisions, the imposition or variation of a condition requested by an authorisation holder.”

This favours the second view that I have put forward and it seems to me that it is a view consistent with the provision made for review of CASA’s decisions in r 201.004 generally.  It would bring into the scope of reviewable decisions any decision made by CASA to vary, suspend or cancel an application made under r 11.125 unless the decision is consistent with the variation, suspension or cancellation sought by the authorisation-holder.

[18] SLI 274 of 2013

[19] 2013 Amendment Regulations; r 4 and Schedule 1; Item 386

1. That brings me to CASA’s decision under r 67.215.  The decision is to refuse Mr Barnes’ application for an extension of the period for which his medical certificate is in force.  Is that a decision of the sort that is intended to be encompassed within Item 1(d) of table 201.004 as a decision refusing to vary an authorisation?  In answering that question, I will begin with the characterisation of an authorisation before turning to whether an authorisation may, or may not, be varied.  In the Attachment to these reasons, I have set out the definition of a “civil aviation authorisation” and noted that an “authorisation” includes, subject to some exceptions, a “civil aviation authorisation”.[20]  A “civil aviation authorisation” is an authorisation to undertake a particular activity.  If a person holds an authorisation for a particular activity, he or she is permitted to undertake that activity but only in accordance with the terms of the authorisation and with any conditions attached to it.  If a person does not hold the relevant authorisation for an activity, he or she is not permitted to undertake it. 

[20] CASR; r 11.015

1. In the case of a medical certificate, the holder of a PPL must hold either a current class 1 or 2 medical certificate before being authorised to exercise the privileges of that PPL. If the medical certificate has not come into effect, the holder of the PPL is not authorised to exercise the privileges of that licence just as he or she is not authorised to do so if the medical certificate has ceased to have effect. The date on which a medical certificate comes into effect may be endorsed on it but need not be. That date is ascertained by reference to r 67.205. I have set out the relevant provisions at [73]-[74] below. The period for which a medical certificate remains in force is a period set out in the certificate as required by r 67.205(3). That period is set by CASA according to the provisions of r 67.205 generally.

1. Looking first at the practical consequences of holding a medical certificate, it is apparent that the time for which a medical certificate remains in force is an integral part of the authorisation.  That follows not only from the fact that the period is defined by reference to the period set out in the certificate but from the very nature of the authorisation it represents.  It is not a situation in which the fact of the authorisation and the period for which it remains in effect can be divorced from each other.  Unless an authorisation is in effect, there is no authorisation.  Unless a pilot has an authorisation in the form of a relevant medical certificate, he or she may not exercise the privileges of his or her licence.  The scope of the authorisation is defined by the period for which it remains in effect not less than by its terms and conditions. 

1. The period for which a medical certificate remains in force is part of that authorisation itself and not a condition to which it is subject.  If the time is extended, the existing medical certificate is extended.  It is not the case that a new medical certificate is issued.  This is clear from the words of rr 67.210 and 67.215 themselves.  Regulation 67.210 makes provision for the holder of a current medical certificate issued by CASA to apply “… for an extension of the period during which the medical certificate remains in force …”.  That is mirrored in r 67.215 when it permits CASA to extend the period “… during which the certificate remains in force …”.[21]  The scope of the authorisation that is the medical certificate in this case has been varied because it has been extended.

[21] CASR; r 67.215(2)

1. Is refusing to extend the period for which a medical certificate is in force a refusal to vary an authorisation and so a reviewable decision within the meaning of Item 1(d)?  There are two streams of argument on this point.  One begins with the proposition that Parliament has been quite specific about making provision for variation, suspension and cancellation of authorisations.  It has both given an authorisation-holder the power to apply for them under rr 11.125 and 11.130 and CASA the power to vary, suspend or cancel in the circumstances I have touched on and which are set out in greater detail in the Attachment.  Regulation of the period during which an authorisation is in effect, the argument would continue, could be thought to be a different matter.  In the case of a medical certificate, extension is the subject of a statutory regime separate altogether from that relating to CASA’s power to vary an authorisation.  That statutory scheme is found in rr 67.210 and 67.215, which provide for extension of the period for which a medical certificate remains in force.  Parliament’s choice of the language of “extension” and not of “variation” shows that an extension is not to be regarded as a variation.

1. An alternative argument begins from the proposition embedded in r 67.205(3) that the period is an integral part of the authorisation.  To extend that period would be to vary the authorisation.  That would be permitted under r 11.125 in the case of an authorisation other than a medical certificate but rr 67.210 and 67.215 make particular provision for an extension of the period for which a medical certificate remains in effect.  The fact that the machinery and process of extending the period of effect differs from the generic provisions set out in r 11.125 in relation to authorisations generally does not alter the fact that what is being done is to vary the authorisation.  The language that is used, whether it be that of variation or extension, is not determinative of the correct characterisation of the decision that has been made.  The correct characterisation is that of variation.

1. Regulation 67.205(3) and the role that the systems of authorisations have in a system of air safety that incorporates considerations directed to reducing adverse effects on the safety of air navigation lend their support to the second argument rather than the first.  It seems to me that the history of the review provisions in r 201.004 do the same.  It is quite an extensive history but I will focus only on the more recent.  After its amendment by the Civil Aviation and Civil Aviation Safety Amendment Regulations 2011 (No. 2) (2011 CASR Amendment), the opening two paragraphs of r 201.004 read:

   “An application may be made to the Administrative Appeals Tribunal for review of:

   (a)a decision refusing to grant or issue, or cancelling, suspending or varying, an authorisation, within the meaning given by Part 11; or

   (b)a decision imposing a condition on, or varying a condition of, an authorisation, within the meaning given by Part 11; …”[22]

[22] 2011 CASR Amendment; SLI 77 of 2013; r 3, Schedule 1, Item [258]

1. Had that remained the law, it would have lent weight to the first argument but it did not.  Regulation 201.004 was repealed and substituted by another that was in a form similar to its current form but with some variation.  Reviewable decisions were set out in a tabular format as they are now with the first two items reading:

“Table 201.004  Reviewable decisions [23] Civil Aviation Legislation Amendment (Miscellaneous) Regulation 2013; SLI 80 of 2013; r 4, Schedule 1, Item 105
Item	A decision …
1	under a provision of these Regulations refusing to grant or issue, or cancelling, suspending or varying, an authorisation
2	under a provision of these Regulations imposing a condition on, or varying a condition of, an authorisation”[23]

1. Reference to those decisions being within the meaning of Part 11 have been omitted.  The Explanatory Statement states that the amendment has been made “… to clarify that the matters for which an application may be made to the Administrative Appeals Tribunal are the decisions of CASA that are listed in the regulations …”. What is important to note is that the reference to decisions made under Part 11 has been omitted. Although no reference is made to its omission, the fact that it has been omitted would seem to remove any requirement that decisions that come within the descriptions in Items 1 and 2 are limited to decisions made under Part 11, which includes r 11.125. It would seem that Parliament has intended to formulate a generic description of the decisions of which review might be sought. The amendments made by the 2013 Amendment Regulations, to which I have referred at [25] above, do not change that view.

1. It follows that a decision refusing an application for extension of the period a medical certificate is in force is a decision of the type described in Item 1(d).  Therefore, Mr Barnes does have a right under the CASR to make an application seeking review of CASA’s decision to refuse his application for an extension under r 67.215.

1. In reaching that conclusion, I note the observations made by Senior Member Fice in Re Barnes and Civil Aviation Safety Authority[24] when he said:

   “… Were Mr Barnes minded to seek a variation of the medical certificate which was issued and CASA refused to vary the period for which his medical certificate remained in force, that decision would be reviewable by the Tribunal.  Alternatively, Mr Barnes could seek an extension of his existing medical certificate in accordance with Reg 67.210.”[25]

   [24] [2015] AATA 272

   [25] [2015] AATA 272 at [34]

Senior Member Fice did not expressly state that a decision made in response to an application under r 67.210 would be a reviewable decision.  If he intended to suggest that it would be reviewable, I have given my reasons why I respectfully agree with that suggestion and with the proposition that CASA’s decision relating to the period for which a medical certificate remains in force may be reviewed by the Tribunal.  I note that my decision is consistent with that reached in Re Hogan and Civil Aviation Safety Authority[26] when it decided that the period for which an authorisation is in effect is not a condition imposed on it.

[26] [2004] AATA 1090; (2004) 84 ALD 707; 39 AAR 440 at [12]-[18]; 710-711; 443-444

Futility of pursuing review

1. If I found that the Tribunal has jurisdiction, Mr Carter referred me to the judgment of Siopis J in Hotop if I were minded to use the power given by s 41(2) of the AAT Act to extend the period for which Mr Barnes’ medical certificate is in force beyond 31 August 2015.  He submitted, however, that review of the decision would ultimately be futile in view of the fact that Mr Barnes’ medical certificate ceased to be in force.  If he were minded to do so, Mr Barnes could apply for a new medical certificate under r 67.180.  Although there has been no application by Mr Barnes to stay the operation of CASA’s decision to refuse to extend the period for which the medical certificate is in force, Mr Carter’s submissions rely on principles relating to the Tribunal’s powers under s 41 of the AAT Act.  Therefore, I will consider those principles as part of my consideration of Mr Carter’s ultimate submission that the proceedings may be regarded as futile.

A.Stay of CASA’s decision

A.1General principles

1. Section 41(1) of the AAT Act begins with the fundamental proposition that:

   “Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.”

In other words, the decision will operate and run its course unless the Tribunal is asked to exercise the power it is given by the remaining provisions of s 41 to change that course.  Under s 41(2):

“The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

Note:    …”

1. Over the years, the courts and the Tribunal have developed five core considerations to which they will have regard in coming to a decision on an application for a stay.  They were summarised by Downes J when he was President of the Tribunal in Re Scott and Australian Securities and Investments Commission[27] (Scott):

   [27] [2009] AATA 798; (2009) 51 AAR 114

   “1.       The prospects of success.

   2.The consequence for the applicant of the refusal of a stay.

   3.The public interest.

   4.The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.

   5.Whether the application for review would be rendered nugatory if a stay were not granted.”[28]

The particular circumstances of the case may add other considerations.  In the case of the banning order considered by Downes J, other matters he considered relevant included the length of time that the ban had already been in place and the gap between the date of the stay hearing and the hearing of the substantive application for review.

[28] [2009] AATA 798; (2009) 51 AAR 114 at [4]; 115

1. I will begin with the analysis of Siopis J in Hotop.  Polar Aviation Pty Ltd (PAPL), the second respondent in that case, carried on business as a commercial aviation operator.  As its Air Operator’s Certificate (AOC) was due to expire in July 2004, PAPL applied in May 2004 for a further AOC to take its place on its expiration.  At the time, CASA had already sent it a Show Cause notice as to why it should not refuse PAPL’s AOC for the period following 31 July 2004.  While that process was being followed, CASA’s policy was to extend the term of the AOC and it did so by extending it from 20 July 2004 to 31 July 2004.  CASA extended the AOC for further periods up to 31 January 2005 as matters progressed but, on 14 January 2005, decided to cancel it with effect from the expiration of the last extension.  PAPL applied to the Tribunal on 18 January 2005 for review of that decision and a further application on a different basis on 4 February 2005.  On 11 February 2005, Deputy President Hotop made an order staying CASA’s decision to cancel an Air Operator’s Certificate and that it be extended until the Tribunal made its decision on the hearing of the application for review. 

1. In his judgment concluding that the stay order had been made within power, Siopis J developed the following points:

   (1)“… The powers conferred on the Tribunal by s 41(2) of the AAT Act are to be exercised for the purpose of securing the effective hearing and determination of the review application. …”.[29]

   [29] [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551; 41 AAR 192 at [40]; 240; 558; 200

   (2)“          It follows that I accept the applicant’s argument that the Tribunal’s power to make orders under s 41(2) of the AAT Act depends on the Tribunal being able to grant effective relief in relation to the impugned decision at the ultimate hearing of the review application.”[30]

   [30] [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551; 41 AAR 192 at [41]; 240; 558; 200

   (a)“… It will be a question in each case, therefore, whether the decision the subject of the review application is a decision in respect of which the Tribunal may be able to grant effective relief at the ultimate hearing, having regard to its statutory function as a body empowered to conduct a merits review of the impugned decision.  In this regard it is significant that s 43 of the AAT Act provides that the Tribunal has the power to substitute its decision for the decision of the decision-maker under review; and for the Tribunal’s decision to be deemed to take effect at the time of the decision under review.”[31]

   [31] [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551; 41 AAR 192 at [41]; 240; 558; 200

   (3)“… I reject the submission of senior counsel for the applicant that s 41(2) of the AAT Act is to be construed so as to preclude the Tribunal from making orders that have a positive effect.  I do so for a number of reasons.”[32]

   [32] [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551; 41 AAR 192 at [43]; 240; 559; 200

   (a)“          First, there is authority to the effect that s 41(2) of the AAT Act must be given a broad interpretation (Yolbir [v Administrative Appeals Tribunal (1994) 48 FCR 246] at 249 and Shi v Migration Institute of Australia Ltd (2003) 134 FCR 326 at 332).”[33]

   [33] [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551; 41 AAR 192 at [44]; 240; 559; 200

   (b)“          Second, there is nothing in the language of the section that precludes the Tribunal from making an order in positive terms.  In fact, the language used is of wide ambit permitting the Tribunal to make ‘such order or orders staying or otherwise affecting the operation or implementation of the decision … as [it] considers appropriate’ to achieve the specified purpose.  In the context of a refusal to issue a statutory licence to an existing statutory licence holder, in a case where effective relief can be granted at the hearing, this language is wide enough to include an order permitting the review applicant to continue in business until the hearing of the application.  This is because the Tribunal’s order in those terms would ‘affect the operation’ of the impugned decision, which would otherwise operate to preclude the review applicant from continuing to carry on its existing business.  In other words, the order of the Tribunal affects the operation of the impugned decision because it neutralises its adverse effect and anticipates that a favourable decision with retrospective effect may replace the impugned decision.”[34]

   [34] [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551; 41 AAR 192 at [45]; 240-241; 559; 200-201

   (c)“          Third, the argument advanced by senior counsel for the applicant, would substantially undermine the Tribunals’ capability to provide effective relief in cases where the operation of the impugned decision would result in the applicant for review having to cease carrying on an existing business pending the hearing of the application for review. …

   …

   The purpose of the AAT Act is to afford a review applicant an effective means of obtaining a merits review of an administrative decision … I am of the view that a construction which would afford the Tribunal the power to make orders under s 41(2) of the AAT Act to positive effect in the sense referred to above, would be a construction which promotes the purpose of the AAT Act, and is to be preferred over a construction which would deny the Tribunal such a power.”[35]

   [35] [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551; 41 AAR 192 at [46]-[49]; 241; 559-560; 201 (citations omitted)

   (d)“          Fourth, in the Yolbir case the Full Court of this Court expressly recognised that orders under s 41(2) of the AAT Act could be made in positive terms.  At 250 the Full Court said:

   The s 41 power of ‘staying or otherwise affecting the operation or implementation of the decision’, empowered the making of a stay decision expressed either as a suspension of the operative decision, or in the positive terms used by Bowen CJ in Director-General of Social Services v Chaney (unreported, 4 June 1980), which is referred to in the reasons of Deane J in Director-General of Social Services v Chaney (1980) 47 FLR 80 at 98, those terms being:

   to direct payment of the pension to [the respondent] as from today (a pension day) until the hearing of the appeal or further order.

   That order was made in pursuance of s 44A(2) of the AAT Act, a section which confers upon the Federal Court  powers to make interim orders in terms generally similar to those conferred upon the Administrative Appeals Tribunal by s 41 of the AAT Act.”[36]

   (4)In applying these principles to the matter before him, Siopis J characterised the effect of CASA’s decision made on 14 January 2005 as not only a decision to cancel the AOC but also as a decision to refuse PAPL’s application to issue a further AOC.  It followed that the Tribunal had not made a jurisdictional error because it was “… capable of granting effective relief in substitution for the decision of the applicant which was, in effect, to refuse the second respondent’s application for a long-term replacement AOC.”[37]

[36] [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551; 41 AAR 192 at [50]; 242-242; 560; 241-242

[37] [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551; 41 AAR 192 at [54]; 243; 562; 243

1. Section 41(2) of the AAT Act has been considered in a number of other authorities both before and after Hotop.  The following principles can be drawn from the words of s 41(2) and from past authorities that have considered it:

   (1)When s 41(1) provides that the making of an application to the Tribunal for review of a decision does not affect the operation of that decision or prevent the taking of action to implement that decision, it is referring to the operative decision.  It is that operative decision to which s 41(2) refers and which may be stayed for the purpose of securing the effectiveness of the hearing and determination of the application for review.[38]

   [38] Yolbir v Administrative Appeals Tribunal (Yolbir) [1994] FCA 910; (1994) 48 FCR 246; 19 AAR 15; 33 ALD 8; Davies, Burchett and O’Connor JJ at 249; 18; 11

   (a)“… A stay of a non-operative decision would plainly have nothing to do with securing the effectiveness of the hearing or the Tribunal’s determination.”[39]

   [39] Yolbir [1994] FCA 910; (1994) 48 FCR 246; 19 AAR 15; 33 ALD 8; Davies, Burchett and O’Connor JJ at 249; 18; 11

   (b)The power is given in relation to “the decision to which the relevant proceeding relates”.  That expression ensures that s 41:

   “… bears a wide enough construction to cover the operative decision which is the decision to which, in substance, the proceeding relates.  The operative decision is also the decision made in the exercise of powers conferred by an enactment for the purpose of s 25 of the AAT Act and the decision under review for the purposes of s 43 of the AAT Act.”[40]

   [40] [1994] FCA 910; (1994) 48 FCR 246; 19 AAR 15; 33 ALD 8; Davies, Burchett and O’Connor JJ at 250; 19; 11

   (c)This interpretation is consistent with the principle expressed by Beaumont J in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga,[41] that “… the stream cannot rise higher than its source…”.[42]  His Honour said that in the context of the power given to the Federal Court by s 23 of the Federal Court Act 1976 (FC Act) to make an interlocutory order, “in relation to matters in which it has jurisdiction”. Therefore, in the circumstances of that case, the power to make an interlocutory order could not exceed the power given by s 16 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) or by s 39B of the Judiciary Act 1901 to grant final relief. That is a power quite different from the power conferred by s 41 of the AAT Act. Section 15 of the ADJR Act confers a power similar to that in s 41 on the Federal Court and Beaumont J was careful to distinguish between the power in s 23 from that in s 15. While that is true, I respectfully suggest that his statement of the general principle that “… the stream cannot rise higher than its source…” is equally applicable to s 15 of the ADJR Act, and so to s 41 of the AAT Act, as it is to s 23 of the FC Act.

   (2)A decision and its operation and implementation are distinct matters.  It is a proposition found in the judgment of Emmett J in Duncan v Companies Auditors Liquidators Disciplinary Board[43] and of Heerey J in the earlier case of Allied Asia Holdings (Aust) Pty Ltd v Australian Securities and Investments Commission.[44]  As expressed by Emmett J it is that:

   “The power conferred by s 41(2) of the AAT Act is to stay or affect the operation or implementation of a decision.  It is not, in its terms, a power to suspend or stay the decision itself.”[45]

   (3)“          It is also necessary to mention that no party in a proceeding before the Tribunal bears a burden of proof to establish facts or to make out the case for review.  However, an applicant for review before the Tribunal must provide to the Tribunal sufficient evidentiary material to enable it to exercise its discretion in accordance with law: see McDonald v Director-General of Social Security (1984) 1 FCR 354; 6 ALD 6. Put simply, the Tribunal must have sufficient evidence before it to enable it to come to a conclusion, after considering all relevant matters, that the discretion should be exercised in favour of the applicant for the stay.”[46]

[41] (1992) 34 FCR 169;105 ALR 301; 25 ALD 545

[42] (1992) 34 FCR 169;105 ALR 301; 25 ALD 545 at 179; 311; 544

[43] [2006] FCA 1747; (2006) 155 FCR 572; 93 ALD 401 at [9] and [11]; 575; 40

[44] [2002] FCA 566 at [16]

[45] Duncan v Companies Auditors Liquidators Disciplinary Board [2006] FCA 1747; (2006) 155 FCR 572; 44 AAR 253; 93 ALD 401; at [9]; 575; 256; 403

[46] Re XTWK and Australian Securities and Investments Commission [2007] AATA 1890; (2007) 98 ALD 131; at [15]; 134; Senior Member Fice

1. Following the principles established by the Full Court of the Federal Court in Yolbir by which I am bound, I am required first to identify the operative decision i.e. the decision made in the exercise of powers conferred by an enactment for the purposes of s 25 of the AAT Act and the decision under review for the purposes of s 43 of the same legislation.  In the case of Yolbir, it was a decision to cancel a pension that had previously been paid to Mr Yolbir under the Social Security Act 1991.  In this case, it is a decision to refuse to extend the period during which a medical certificate is in force.

1. The next step to take is to consider the consequences of staying or otherwise affecting the operation of that operative decision.  In Yolbir, when the decision to cancel the pension was stayed, the consequence was that payment of the pension was resumed and continued just as it had before the cancellation decision.  That result was a direct consequence of the Tribunal’s decision to use its power to stay or otherwise affect the operation or implementation of the cancellation decision.  It did not follow from any positive order to resume payment of the pension.

1. It may be that, from time to time, an order under s 41 of the AAT Act is expressed in positive terms rather than in terms consistent with the power that is given.  It is said by Siopis J in Hotop that this is what was done in the case of Director-General of Social Services v Chaney[47] (Chaney) referred to by Deane J in Yolbir.  I have set out the relevant passage at [41(3)(d)] above.  As I understand the judgments delivered by each of the three Judges in Chaney, the order made by the Tribunal’s then President, Davies J, was not expressed in positive terms.  The order made by Bowen CJ and to which Deane J referred, had been made on appeal and in clarification of his Honour’s order.  It also shows that the principles I have set out in the previous paragraph were applied. 

[47] [1980] FCA 87; (1980) 47 FLR 80; 31 ALR 571; 3 ALD 161; Deane and Fisher JJ; Northrop J dissenting

1. I will set out the terms of the orders.  Beginning with that of Davies J, it was given in the following form:

   “I should suspend the order as from the start of the next pension period until the hearing and determination of this review or order made prior to that date.”[48]

[48] [1980] FCA 87; (1980) 47 FLR 80; 31 ALR 571; 3 ALD 161 at 95; 586; 174 per Northrop J

1. When an appeal was lodged in the Federal Court from the order, Bowen CJ made an order under s 44A(2) of the AAT Act.  When an appeal is instituted in the Federal Court from a decision of the Tribunal, s 44A(2) gives the Court power to make an order staying or otherwise affecting the operation or implementation of either or both the Tribunal’s decision and the decision to which the proceeding before the Tribunal related for the purpose of securing the effectiveness of the hearing and determination of the appeal.  Bowen CJ made the following order:

   “In pursuance of s 44A(2) of the Administrative Appeals Tribunal Act 1975 the order of Davies J be so affected that it operates to direct payment of the pension to Rosemary Chaney as from today (a pension day) until the hearing of the appeal or further order.”[49]

[49] [1980] FCA 87; (1980) 47 FLR 80; 31 ALR 571; 3 ALD 161 at 96; 587; 175 per Northrop J

1. The reason for the form of Bowen CJ’s order is apparent from the judgment of Deane J when he noted that the Director-General had thought that the language of Davies J’s order had failed to achieve its purpose.  His Honour said that:

   “… It is plain, from a perusal of the transcript, that it was his Honour’s intention that the respondent should, under the interim order which he made, be entitled to receive the widow’s pension pending the determination of the application for review or further order. …”[50]

[50] [1980] FCA 87; (1980) 47 FLR 80; 31 ALR 571; 3 ALD 161 at 98; 588; 176 per Deane J

1. Much of the case in before the Full Court turned on whether the Tribunal had made a “decision” in relation to which the Director-General had a right of appeal to it.  The majority decided that it had not and, although Fisher J observed that Bowen CJ’s order had been justified for the purpose of securing the effectiveness of the hearing and determination of the appeal, it had to be discharged once it was decided by the majority that no appeal had been validly instituted.[51]  Chaney, therefore, is not a case in which the stay powers conferred by the AAT Act were the focus of attention.  Once the history of the decision-making is set out, it is not a case that is authority for a proposition that, in exercising the power that it is given under s 41(2), the Tribunal may do more than stay or otherwise affect the operation of a decision of which review is sought.  It is not authority for a proposition that the Tribunal may make a decision of the sort that it might make after reviewing that decision.  The powers that it has been given for the purpose of reviewing a decision are found in s 43(1) and are “… all the powers and discretions that are conferred by any relevant enactment on the person who made the decision …”.[52]  They are very different from the power given by s 41(2) to “… make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.” (emphasis added)

[51] [1980] FCA 87; (1980) 47 FLR 80; 31 ALR 571; 3 ALD 161 at 107; 596-597; 184 per Fisher J

[52] AAT Act; s 43(1)

1. The case with which I am concerned is a case of refusal to extend the period that a medical certificate is in force.  In Allied Asia Holdings (Aust) Pty Ltd v Australian Securities and Investments Commission, the Australian Securities and Investments Commission (ASIC) had made a decision under the Insurance (Agents and Brokers) Act 1984 (IAB Act) refusing to renew the applicant’s registration as a general insurance broker.  An application for review had yet to be lodged in the Tribunal but Heerey J touched on s 41(2) of the AAT Act in considering whether the Court had power to issue an injunction preventing ASIC from publishing a press release revealing the decision and the findings made by the delegate in making it.  With regard to s 41(2), Heerey J observed:

   “It is difficult to see conceptually how that jurisdiction would extend to making a positive order for the renewal of registration.”[53]

His Honour returned to that a little later after referring to ASIC’s statutory obligation imposed by s 21(5)(c) of the IAB Act to publish in the Gazette notice of any refusal to renew an applicant’s registration:

“It would seem pointless to issue an injunction if the same result would follow by the publication of notice of refusal in the Gazette.  Section 21(5) appears to me to be in quite clearly mandatory terms, and I do not see how it could be affected by the grant by the AAT of any stay, which, after all, could only affect the operation or implementation of the decision to refuse, not the fact that that decision has been made.”[54]

[53] [2002] FCA 566 at [11]

[54] [2002] FCA 566 at [16]

1. The decision that I am considering is no different.  In exercising power conferred by s 41(2), I can look only at the decision to refuse to extend the period for which the medical certificate is in force.  I cannot look at whether I would, or would not, on any evidence that may be produced on review of the operative refusal decision and exercising CASA’s powers and discretions as I am permitted to do by s 43(1) of the AAT Act, make a decision to extend that period.  In looking at the decision to refuse to extend the period, I must look at the outcome of my staying or otherwise affecting its operation.  Whether an application for a stay had been made and heard before or after the expiration of the medical certificate on 11 August 2015 and an order made staying the operation of CASA’s decision to refuse to extend the period for which the medical certificate was in force, the outcome would have been this.  The order would have had the effect of putting aside the implementation of the decision to refuse the extension.  For all practical purposes, the situation would have been as if the decision had never been made.  The medical certificate would have continued in force as if the cancellation decision had not been made.  That would have meant that it would have continued in force in accordance with its terms.  Those terms would have included its expiration on 11 August 2015.  It would not have been in the Tribunal’s power to extend that time for it could have only done that when exercising its powers under s 43 after reviewing the decision.[55]

   [55] The fact that the Tribunal may not exercise power to make a “positive decision” under s 41 does not mean that the decision-maker is necessarily prevented from doing so if minded to keep the status quo pending determination of the application for review.  Whether the decision-maker is, or is not, prevented depends on the particular legislative powers available to the decision-maker.  If permitted to make a further decision, the legislation will determine whether it is a decision to extend time or to make a wholly new decision.  Where the decision-maker may make a decision that maintains the status quo, s 26 of the AAT Act determines whether that decision is reviewed by the Tribunal or the original decision remains the relevant decision under review.

Is the proceeding futile?

1. The answer to this question is determined by reference to the provisions of r 67.215 of the CASR.  Under r 67.215(2), any extension of the period during which a medical certificate remains in force must not be for a period longer than one year after the day when the certificate would have expired had the period not been extended.  Given that Mr Barnes’ medical certificate expired on 11 August 2015, r 67.215(2) would, on review of CASA’s decision, prevent any extension of the period beyond 11 August 2016.  That does not mean that the review of the decision is futile when looked at in terms of the law.  While I understand that Mr Barnes has yet to put forward any medical or other evidence that would support his case for extending the period, I am not prepared to deny him that opportunity at the outset by dismissing his application under the power given by s 42B of the AAT Act.

PROVISIONS REGULATING PPLs AND MEDICAL CERTIFICATES

1. The CA Act establishes CASA with functions relating to civil aviation and, in particular, to the safety of civil aviation.[56]  Part III of the CA Act provides for the regulation of civil aviation.  I will refer only to ss 20AB and 98.  Beginning with the former, I note that s 20AB(1) provides:

   [56] CA Act; Long Title

   “A person must not perform any duty that is essential to the operation of an Australian aircraft during flight time unless:

   (a)the person holds a civil aviation authorisation that is in force and authorises the person to perform that duty; or

   (b)the person is authorised by or under the regulations to perform that duty without the civil aviation authorisation concerned.”

The expression “civil aviation authorisation” means:

“… an authorisation under this 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).”[57]

[57] CA Act; s 3(1)

1. Section 98 of the CA Act permits the Governor-General to make regulations on various matters including those required or permitted by that legislation to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the legislation.[58]  Of relevance in this case are those regulations made in the form of the CASR.  Those regulations prescribe particular categories of what the CA Act calls civil aviation authorisations and regulate the qualifications that an applicant must meet before being entitled to one authorisation or another. 

   [58] CA Act; ss 98(1)(a) and (b)

Flight crew licences including PPLs

1. Among those civil aviation authorisations are flight crew licences.  A “flight crew licence” includes, among other licences, a pilot licence and a “pilot licence” includes a PPL.[59]  Flight crew licences are the subject of Part 61 of the CASR.  A PPL of the type held by Mr Barnes is one of those licences and it is the subject of Subpart 61.H of Part 61.  Subpart 61.H regulates matters relating to the privileges of PPLs and the limitations imposed upon them.  It also sets out the qualifications that an applicant for a PPL must hold.  Regulation 61.505 sets out the privileges of a holder of a PPL:

   “Subject to Subpart 61.E and regulations 61.510, the holder of a private pilot licence is authorised to pilot an aircraft as pilot in command or co-pilot if:

   (a)the aircraft is engaged in a private operation; or

   (b)the holder is receiving flight training.

   Note 1:Subpart 61.E sets out certain limitations that apply to all pilot licences, and ratings and endorsements on pilot licences.

   Note 2:The holder of a private pilot licence is also authorised to taxi an aircraft in certain circumstances: see regulation 61.430.

   Note 3:The holder of a private pilot licence is also authorised to transmit on a radio frequency of a kind used for the purpose of ensuring the safety of air navigation: see regulation 61.435.”

   [59] CASR; r 61.010

Medical certificates

1. The particular provisions of Subpart 61.H are, as Note 1 to r 61.505 suggests, subject to the general provisions of Subpart 61.E.  Regulation 61.410(1) provides that the holder of a PPL is only authorised to exercise the privileges of the licence if the holder also holds either a current class 1 or 2 medical certificate or a medical exemption for the exercise of those privileges.  That restriction does not apply if the holder of a PPL exercises the privileges in a recreational aircraft while holding a current recreational aviation medical practitioner’s certificate, meeting the requirements of r 61.405(2) and conducting a flight by day under the VFR.[60]  Among those requirements is that the holder of the PPL must meet the modified Austroads medical standards.[61]  The Note to r 61.410 states:

   “A licence holder must not exercise the privileges of his or her licence during any period of temporary medical unfitness that could render the holder unable to exercise those privileges safely: see regulation 67.270.”

   [60] CASR; rr 61.410(2) and (3)

   [61] CASR; r 61.405(2)(d) and see also r 67.262 as to what meeting the modified Austroad medical standards entails.

1. Part 67 of CASR regulates matters such as the appointment of appropriately qualified persons as DAMEs and Designated Aviation Opthalmologists (DAOs), medical standards for the issue of medical certificates and offences in relation to the holders of medical certificates.  Medical certificates are the subject of Subpart 67.C of Part 67.  There are three classes of medical certificate: a class 1 medical certificate; a class 2 medical certificate; and a class 3 medical certificate.[62]  Subpart 67.C sets out the criteria for each. 

   [62] CASR; r 67.145

1. Subject to rr 67.155(2) to (7), those who satisfy the criteria in table 67.155 meet medical standard 2.[63]  The qualifications in rr 67.155(2) to (6) relate to eyesight.  Regulation 67.155(7) is of general application when it provides:

   “If a change is made to a criterion in an item of table 67.155, a person who held a class 2 medical certificate and satisfied the criterion immediately before the change, but fails to satisfy the criterion as changed, is taken to satisfy the criterion for 2 years after the day when the change is made.”

   [63] CASR; r 67.155(1)

A.        Application for a medical certificate

1. A person may apply to CASA for the issue of a medical certificate.[64]  Regulation 11.030 sets out the way in which an application for an “authorisation” is made in situations in which a previous authorisation has not been cancelled.[65]  An “authorisation” includes a “civil aviation authorisation” other than an AOC, a delegation or an appointment of an authorised person.[66]  A “civil aviation authorisation” is defined in terms broad enough to encompass a medical certificate.[67]

B.       Approval or refusal of an application for a medical certificate

[64] CASR; r 67.175

[65] Applications in that situation are regulated by CASR; r 11.032.

[66] CASR; r 11.015

[67] CA Act; s 3(1)

B.1     General provisions regulating the grant of an authorisation

1. Regulation 11.055(1) provides that, subject to ss 30A, 30DY(2)(b), 30DZ(2)(b) and 30EC(2)(b) of the Act, r 11.055 applies despite any other provisions providing for the grant or issue of an authorisation.  Of relevance in this case is r 11.055(1A).  Subject to subregulation (1C), which is not relevant in this case and:

   “Subject to subregulation … (1B) …, if person has applied for an authorisation in accordance with these Regulations, CASA may grant the authorisation only if:

   (a)the person meets the criteria specified in these Regulations for the grant of the authorisation; and

   (b)any other requirements in relation to the person that are specified in these Regulations for the grant of the authorisation are met; and

   (c)any other requirements in relation to the thing in respect of which the application is made that are specified in these Regulations for the grant of the authorisation are met; and

   (d)these Regulations do not forbid CASA granting of the authorisation in the particular case; and

   (e)granting the authorisation would not be likely to have an adverse effect on the safety of air navigation.”

The requirements of r 11.055(1A)(a) are developed in r 11.055(2).[68]           

[68] The requirements of r 11.055(1A)(a) are developed in r 11.055(2) and the matters CASA may take into account for the purposes of r 11.055(1A)(e) are set out in r 11.055(4).

1. Subregulation 11.055(1B) provides that:

   “If another provision of these Regulations provides that this subregulation applies to the granting of the authorisation, CASA may grant the authorisation only if:

   (a)  the requirements of paragraphs (1A)(a) to (d) are satisfied; and

   (b)  granting the authorisation will preserve a level of aviation safety that is at least acceptable.”[69]

   [69] The matters CASA may take into account for the purposes of r 11.055(1B)(b) are set out in r 11.055(4).

B.2     Specific provisions regulating the grant of a medical certificate

1. Regulation 67.180(2) is a provision that is expressed to be subject to r 11.055.  It is also subject to r 67.180(7).  Under it, CASA must issue a medical certificate to an applicant if he or she meets the requirements of r 67.180(2).  Among those requirements are that the applicant has undergone any relevant examinations that, in the opinion of CASA, are necessary in a particular case and each examination has been carried out by an examiner specified in r 67.180(4).  Those examiners include a DAME and a DAO but may also include a specialist medical practitioner or any other practitioner whom CASA has directed to carry out an examination.[70]  An applicant must also meet the requirements in rr 67.180(2)(e) and (f):

   [70] CASR; s 67.180(2)(a), (b) and (c)

   “(e)     either:

   (i)the applicant meets the relevant medical standard; or

   (ii)if the applicant does not meet that medical standard – the extent to which he or she does not meet the standard is not likely to endanger the safety of air navigation; and

   (f)if, in addition to any relevant examinations that the applicant has undergone under paragraph (a), CASA has directed the applicant to undergo an examination under subregulation 67.165(1):

   (i)the applicant has undergone that examination; and

   (ii)having taken into account the result of the examination, CASA is satisfied that issuing a medical certificate to the applicant would not endanger the safety of air navigation.

   Note 1…”

1. CASA must not issue a medical certificate to an applicant if it is satisfied of one or other of the three circumstances set out in r 67.180(7) of the CASR.  Of relevance in this case is that set out in r 67.180(7)(b) i.e. “CASA … is satisfied that the applicant … does not satisfy the requirements of this regulation”. 

1. Regulation 67.180 applies not only to a person applying for a medical certificate for the first time but to a person who has held a medical certificate that has expired.  It applies provided that person applies within three months of the expiration of a medical certificate previously held and CASA is of the opinion that he or she is not required to undergo any relevant examinations for the issue of the new certificate.[71]

C.       Authorisation may be granted subject to conditions

[71] CASR; s 67.180(3)  The period for which the medical certificate remains in force is restricted: see [75] below.

C.1     General provisions regulating the imposition of conditions

1. Conditions relating to authorisations fall into four groups.  In the first group are those that apply to all authorisations and relate to changes relating to the holder.  They are change of name and address (r 11.070), change of nationality (r 11.071), change of business status (r 11.072) and death, dissolution and the like (r 11.073).  In the second group are those imposed by legislative instrument on a class of authorisations: (r 11.068). 

1. Those regulated by rr 11.056 and 11.067 comprise the third group.  Regulation r 11.056 sets out the circumstances in which CASA may grant an authorisation.  As I am not concerned with an experimental certificate, I will set out only rr 11.056(1)(a) and (ab):

   “CASA may grant an authorisation subject to any condition that CASA is satisfied is necessary:

   (a)for an authorisation, other than an authorisation to which subregulation 11.055(1B) applies or an experimental certificate – in the interests of the safety of air navigation; or

   (ab)for an authorisation to which subregulation 11.055(1B) applies – in the interests of preserving a level of aviation safety that is at least acceptable; …”

1. Regulation 11.067 is concerned with the situation after an authorisation has been granted.  It provides that, in accordance with it, CASA may “… impose a condition on the authorisation or vary a condition of the authorisation.”[72]  Putting aside an authorisation that is an experimental certificate:

   “CASA may impose or vary a condition only if CASA considers that it is necessary:

   (a)for an authorisation, other than an authorisation to which subregulation 11.055(1B) applies or an experimental certificate – in the interests of the safety of air navigation; or

   (b)for an authorisation to which subregulation 11.055(1B) applies – in the interests of preserving a level of aviation safety that is at least acceptable; or

   (b)  …”[73]

   [72] CASR; r 11.067(1)

   [73] CASR; r 11.067(1A)

1. If CASA proposes to impose, or vary, a condition on an authorisation, it must give written notice to that effect to the holder of the authorisation and have regard to any submissions the holder may wish to make.[74] 

   [74] CASR; r 11.067(2)-(4)

1. The fourth group of conditions are those requiring the holder of an authorisation to comply with a notice given to it by CASA.  Regulation 11.074 imposes that condition in relation to events specified in the notice within a specified period.  Regulation 11.075 imposes it in relation to information or documents specified in the notice and relating to an activity, document or thing to which the authorisation relates.

C.2Specific provisions regulating imposition of conditions on a medical certificate

1. Regulations 67.195 and 67.200 are concerned with conditions relating to medical certificates.  Without limiting those provisions falling in the third group of general provisions (rr 11.056 and 11.067), CASA may issue a medical certificate subject to a condition that the period during which the certificate remains in force may be extended only by CASA.[75]  Regulation 67.200 is concerned with conditions that might be imposed on a medical certificate with regard to correcting lenses.

   [75] CASR; r 67.195

D.       Notice of decision to grant or refuse medical certificate

1. Regulation 11.060(1) requires CASA to give an applicant written notice of the decision it has made.  If the decision was to refuse to grant an authorisation, reasons must be given as they must be if a decision is made to impose a condition on an authorisation not sought by the applicant.[76] 

E.        When medical certificate comes into force

[76] CASR; rr 11.060(1)(b) and (1)(a)(ii)

E.1      Authorisations generally

1. Generally, an authorisation comes into effect either on the day stated in the document that is evidence that a person holds an authorisation or in any notice of the decision given to that person.  The date must not be a date before the date of either the notice or the document.[77]  If no date is stated, the authorisation comes into effect on the date of the document or notice.[78]

[77] CASR; rr 11.060(2) and (3)

[78] CASR; r11.065

E.2      Medical certificates

1. A medical certificate comes into force on the medical certificate’s “appropriate day” if the holder has undergone any relevant examinations required for its issue and complies with the relevant medical standard in all respects.  In any other case, it comes into effect on the day the certificate is issued.[79]

   [79] CASR; r 67.205(2)

1. The “appropriate day” is determined in accordance with r 67.205(1) according, in part, to whether a person has never held a medical certificate or held a medical certificate that has expired, whether a person holds a medical certificate but completes the last relevant examination more than 28 days before that certificate is due to expire or whether a person holds a medical certificate and completes the last relevant examination fewer than 28 days before it is due to expire.

F.Period medical certificate in force

1. Regulation 67.205(3) sets out the period for which a medical certificate remains in force.  I will set out its provisions only in so far as they relate to a class 2 medical certificate:

   “Subject to subregulation (6) and regulations 67.215 and 67.220, a medical certificate issued by CASA to a person who has undergone any relevant examinations required for the purpose of the issue of the certificate remains in force for the period set out in the certificate, being a period of not more than:

   (a)       …

   (b)       in the case of a class 2 medical certificate:

   (i)if the person is less than 40 years old when the certificate is issued to him or her – 4 years after the day when the certificate comes into force; or

   (ii)if the person is 40 years old or older when the certificate is issued to him or her – 2 years after the day when the certificate comes into force; and

   (c)…”

1. A medical certificate issued to a person who has not been required to undergo any relevant medical examinations is limited in its duration.  Under r 67.205(4), but subject to rr 67.205(6), 67.215 and 67.220, a medical certificate issued by CASA to a person who has not been required to undergo any examinations, remains in force for the period specified in the certificate but that period may not be longer than two months.[80] 

G.       Extension of period for which an authorisation in force

[80] CASR; r 67.205(4).  Provision is made for an extension of the medical certificate in rr 67.215 and 67.220 and I will return to them.

G.1     Continuation of time-limited authorisation

1. As a general rule, if the holder of a time-limited authorisation applies for the issue of a new time-limited authorisation and does so at least 21 days before its expiration, that authorisation remains in force until either CASA makes a decision or, if CASA’s decision is favourable, the new authorisation comes into force.[81]  That rule will not apply if CASA should ask for further information or documents and the applicant for the new authorisation does not comply within the specified time.  The old authorisation is taken to cease at the end of the period specified for compliance.[82]

   [81] CASR; r 11.140(3)

   [82] CASR; r 11.140(4)

G.2     Extension of medical certificate

1. Regulation 67.210 permits the holder of a current medical certificate issued by CASA to apply for an extension of the period during which the medical certificate remains in force.  The application may be made to CASA or, if the certificate is not subject to a condition to the effect that the period may only be extended by CASA, by a DAME.[83]

   [83] CASR; r 67.210(2)

1. Regulations 67.215 and 67.220 provide for extensions by CASA and DAMEs respectively.  In this case, extension or otherwise by CASA is relevant.  Regulation 67.215 provides:

   “(1)     If, on receiving an application under regulation 67.210 for an extension of the period during which a current medical certificate remains in force, CASA is satisfied that extending the period will not adversely affect the safety of air navigation, CASA may extend the period by:

   (a)entering the period of the extension on the certificate; or

   (b)giving to the holder of the certificate a written notice setting out the period of the extension.

   (2)An extension by CASA of the period during which the certificate remains in force must not be for longer than 1 year after the day when the certificate would expire if the period had not been extended.”

H.Variation, suspension and cancellation of authorisations and conditions

H.1Application by holder

1. Subpart 11.D of Part 11 provides for:

   “… applications that may be made by the holder of an authorisation for:

   (a)the variation of the authorisation, including imposing, removing or varying a condition of the authorisation; or

   (b)       the suspension or cancellation of the authorisation.

   Note:See Part 13 in regard to suspension, variation or cancellation of an authorisation for other reasons.”[84]

   [84] CASR; r 11.120

1. The application must comply with r 11.125 in the case of variations.  Regulations 11.055, 11.056, 11.060 and 11.065 apply to a variation of an authorisation as if each reference in those regulations to an authorisation were a reference to a variation of an authorisation.[85]  In the case of a suspension or cancellation of an authorisation, the holder must comply with r 11.130.

   [85] CASR; r 11.125(3)

H.2     Variation, suspension and cancellation for other reasons

1. Part 13, to which the Note to r 11.120 refers, establishes a voluntary reporting scheme and a demerit points scheme. It is read with Division 3C, in relation to the voluntary reporting scheme and, in relation to the demerits point scheme, Division 3D of Part III of the CA Act. The voluntary reporting scheme may mitigate what CASA might otherwise have decided in relation to a variation, suspension or cancellation of a civil aviation authorisation. Division D provides for suspension or cancellation of a holder’s civil aviation authorisations if the holder incurs a specified number of demerit points. The holder incurs demerit points for a prescribed offence if he or she is either given an infringement notice under the regulations in relation to the offence and pays (in whole or part) the penalty specified in the notice or he or she is convicted or found guilty of the offence.[86]  A “prescribed offence” is an offence prescribed by regulations as an offence to which Division 3D of Part III of the CA Act applies.[87]  Regulations may also prescribe the number of demerit points that are incurred in relation to an offence.[88]

   [86] CA Act; s 30DW

   [87] CA Act; ss 30DS and 30DT(a)

   [88] CA Act; s 30DT(b)

1. Regulation 13.370 of the CASR prescribes as offences to which Division 3D applies, all offences under both it and the Civil Aviation Regulations 1988 that are specified as offences of strict liability.  Examples include contravention of a condition imposed under rr 11.056, 11,067 or 11.068,[89] failure to notify CASA of the happening of an event it has specified in a notice,[90] and failure to give CASA information or a document relating to the activity, document or thing to which the authorisation relates.[91]  The number of points incurred for each are prescribed in r 13.370(2).  Regulations 11.070 to 11.077 provide that the holder of an authorisation commits an offence of strict liability if in breach of certain conditions.[92]

   [89] CASR; r 11.077

   [90] CASR; r 11.074

   [91] CASR; r 11.075

   [92] See [82] above

I certify that the eighty three preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           ………[sgd]......................................................

Associate

Date of Hearing  2 September 2015

Date of Decision  13 October 2015

Self-represented Applicant                Mr David Barnes with assistance from Ms Denise Logue

Solicitor for the Respondent              Mr Anthony Carter

Legal Services Group, Civil Aviation Safety Authority