Civil Aviation Safety Authority v Caper Pty Ltd
[2012] FCA 1213
•2 November 2012
FEDERAL COURT OF AUSTRALIA
Civil Aviation Safety Authority v Caper Pty Ltd [2012] FCA 1213
Citation: Civil Aviation Safety Authority v Caper Pty Ltd [2012] FCA 1213 Appeal from: Caper Pty Ltd T/a Direct Air Charter and Civil Aviation Safety Authority [2011] AATA 181 Parties: CIVIL AVIATION SAFETY AUTHORITY v CAPER PTY LTD File number: VID 289 of 2011 Judge: MURPHY J Date of judgment: 2 November 2012 Corrigendum: 21 November 2012 Catchwords: STATUTORY INTERPRETATION – Civil Aviation Regulations - Whether air transport to be classified as charter or regular public transport – meaning of “persons generally” in the regulations
ADMINISTRATIVE LAW – Appeal from a decision of the Administrative Appeals Tribunal – whether Tribunal’s decision was affected by error of lawLegislation: Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Civil Aviation Act 1988 (Cth)
Civil Aviation Regulations 1988 (Cth)Cases cited: Chegwidden v White (1985) 59 ALR 548
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Southern Cross Airlines Pty Ltd v McNamara (1989) 97 FLR 72Date of hearing: 19 March 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 96 Counsel for the Applicant: Mr I Harvey Solicitor for the Applicant: Civil Aviation Safety Authority Counsel for the Respondent: Mr J Ribbands Solicitor for the Respondent: Maitland Lawyers FEDERAL COURT OF AUSTRALIA
Civil Aviation Safety Authority v Caper Pty Ltd [2012] FCA 1213
CORRIGENDUM
1.In paragraph 23 after the words “provide the aircraft” the word “in” should be deleted.
2.In the last sentence of paragraph 49 after the word “generally” the word “in” should be inserted.
3.In the last sentence of paragraph 51 the first use of the word “purpose” should be “construction”.
4.In paragraph 88 the number “[72]” should be “[73]”.
5.In paragraph 95 after the words “Notice of Appeal” insert the words “and its”, and after the word “submission” delete the word “and”.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Murphy. Associate:
Dated: 21 November 2012
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 289 of 2011
BETWEEN: CIVIL AVIATION SAFETY AUTHORITY
ApplicantAND: CAPER PTY LTD
Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
2 NOVEMBER 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is upheld.
2.The decision of the Administrative Appeals Tribunal of 21 March 2011 is set aside.
3.Within 7 days the parties to file and serve short submissions as to whether the matter ought be remitted to the Tribunal to be determined according to law or whether the Court should substitute a decision.
Note:Settlement of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 289 of 2011
BETWEEN: CIVIL AVIATION SAFETY AUTHORITY
ApplicantAND: CAPER PTY LTD
Respondent
JUDGE:
MURPHY J
DATE:
2 NOVEMBER 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
This proceeding is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). It is brought by the applicant, the Civil Aviation Safety Authority (“CASA”) which has the statutory function under the Civil Aviation Act 1988 (Cth) (“the Act”), of conducting the safety regulation of civil air operations in Australia. The respondent, Caper Pty Ltd (“Caper”), is an aviation company engaged in, amongst other operations, the air transportation of tourists between Darwin and Bathurst Island (“the Caper air operation”).
Commercial air operations such as Caper’s are required under the Act to be authorised pursuant to a license issued by CASA called an Air Operators’ Certificate (“AOC”). Caper, trading as Direct Air Charter, is the holder of an AOC which authorises it to conduct charter operations and aerial work operations.
Different authorisations are required for different types of commercial air operations. Relevantly, different authorisations are required for:
(a)charter operations that fly to a fixed schedule, to and from fixed terminals, in which the seats in the aircraft are not available for use by persons generally – called closed charters; compared to
(b)operations on a fixed schedule, to and from fixed terminals over specific routes, for the purpose of transporting persons generally – called regular public transport (“RPT”).
RPT operations attract more stringent safety requirements under the Act and the Civil Aviation Regulations 1988 (Cth) (“the Regulations”).
CASA had concerns that the Caper air operation fell outside the charter purpose permitted by its AOC, and that in its regular flights between Darwin and Bathurst Island Caper was in fact providing RPT. In May 2010 CASA served a show cause notice on Caper advising of its concern and threatening to suspend or cancel the authorisation in Caper’s AOC which permitted charter flights between Darwin and Bathurst Island. In September 2010 CASA issued a notice cancelling the authorisation.
Caper applied to the Tribunal for review of CASA’s decision and it continued its operation in the interim because s 31A of the Act provided for an automatic stay on the decision. On 21 March 2011 the Tribunal set aside CASA’s decision. It found that the Caper air operation was correctly defined as a charter service for the purposes of the Act and Regulations and not RPT.
CASA now appeals to this Court from the Tribunal decision. For the reasons set out below, I consider that on a proper construction of the Act and Regulations the Caper air operation constitutes RPT rather than a charter operation. The Tribunal decision must be set aside.
LEGISLATIVE FRAMEWORK
The Act and its associated regulations are the primary instruments by which a comprehensive scheme for the regulation of civil aviation in Australia is created. This is first displayed in the long title of the Act which is “An Act to establish a Civil Aviation Safety Authority with functions relating to civil aviation, in particular the safety of civil aviation, and for related purposes.”
Section 3A of the Act provides:
Main object of this Act
The main object of this Act is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation with particular emphasis on preventing aviation accidents and incidents.The administration of the regulatory scheme is primarily the responsibility of CASA. Section 9 of the Act assigns CASA the role of conducting the safety regulation of civil aviation in the Australian territory. One regulatory method by which CASA performs this role is through the issue of permits, certificates and licences.
Consistently with the main object of the Act, s 9 sets out CASA’s functions and relates these in particular to the safety of civil aviation, including by the issue of relevant authorisations or certificates under s 9(1)(e). Section 9 relevantly provides:
CASA’s functions
(1)CASA has the function of conducting the safety regulation of the following, in accordance with this Act and the regulations:
(a)civil air operations in Australian territory;
…
by means that include the following:(c)developing and promulgating appropriate, clear and concise aviation safety standards;
(d)developing effective enforcement strategies to secure compliance with aviation safety standards;
(da)administering Part IV (about drug and alcohol management plans and testing);
(e)issuing certificates, licences, registrations and permits;
(f)conducting comprehensive aviation industry surveillance, including assessment of safety-related decisions taken by industry management at all levels for their impact on aviation safety;
…
(2)CASA also has the following safety-related functions:
(a)encouraging a greater acceptance by the aviation industry of its obligation to maintain high standards of aviation safety…
(3)CASA also has the following functions:
…
(a)cooperating with the Australian Transport Safety Bureau in relation to investigations under the Transport Safety Investigation Act 2003 that relate to aircraft;
…
(e)promoting the development of Australia’s civil aviation safety capabilities, skills and services, for the benefit of the Australian community and for export;
…
Importantly, s 9A(1) indicates that safety considerations are paramount in the Act. It provides:
Performance of functions
In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.Section 27 provides:
AOCs
(1) CASA may issue AOCs for the purposes of its functions.
(2) Except as authorised by an AOC [and apart from exceptions not presently relevant]:
(a) an aircraft shall not fly into or out of Australian territory; and
(b) an aircraft shall not operate in Australian territory; and
(c) an Australian aircraft shall not operate outside Australian territory.
…
(9)Subsection (2) applies only to the flying or operation of an aircraft for such purposes as are prescribed.
The effect of subs 27(2) is to prohibit the use of aircraft in Australia unless CASA has authorised that use by the issue of an AOC, but subs 27(9) provides that subs (2) applies only to the flying or operation of an aircraft “for such purposes as are prescribed”.
Regulation 206 prescribes the purposes for which an AOC is required with regard to a commercial air operation and subregs 206(1)(b) and (c) are central to the appeal. It provides:
Commercial purposes
(1) For the purposes of subsection 27 (9) of the Act, the following commercial purposes are prescribed:
(a) aerial work purposes, being purposes of the following kinds…
(i) aerial surveying;
(ii) aerial spotting;
(iii) agricultural operations;
(iv) aerial photography;
(v) advertising;
(vi) flying training…
(vii) ambulance functions;
(viii)carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft (not being a carriage of goods in accordance with fixed schedules to and from fixed terminals);
(ix)any other purpose that is substantially similar to any of those specified in sub paragraphs (i) to (vii) (inclusive);
(b) charter purposes, being purposes of the following kinds:
(i)the carriage of passengers or cargo for hire or reward to or from any place, other than carriage in accordance with fixed schedules to and from fixed terminals or carriage for an operation mentioned in subregulation 262AM (7) or under a permission to fly in force under subregulation 317(1);
(ii)the carriage, in accordance with fixed schedules to and from fixed terminals, of passengers or cargo or passengers and cargo in circumstances in which the accommodation in the aircraft is not available for use by persons generally;
(c)the purpose of transporting persons generally, or transporting cargo for persons generally, for hire or reward in accordance with fixed schedules to and from fixed terminals over specific routes with or without intermediate stopping places between terminals.
Three different types of commercial air operation are described in reg 206.
The first type is described in subreg 206(1)(b)(i) which relates to air operations commonly described as “open charters”. Relevantly, an open charter is the charter of an aircraft for the carriage of passengers where the flight is not on a fixed schedule to and from fixed terminals, that is, a charter which is on demand. Such carriage may be open to the general public. It is common ground that the Caper air operation is outside the scope of this subregulation because the flights in question were on a fixed schedule to and from fixed terminals.
The second type – closed charters - is described in subreg 206(1)(b)(ii). Relevantly, a closed charter is the charter of an aircraft for the carriage of passengers where the flight is on a fixed schedule to and from fixed terminals, but where the seats in the aircraft are not available for use by persons generally. It is uncontroversial that closed charters include, for example, a church group which organises regular trips for its congregants to a particular location for the purposes of attending a religious retreat, or a mining company which charters regular flights to and from a capital city for employees and contractors to fly to work at its mine in a remote location. This is uncontroversial because there is no question that such flights are not available for use by members of the general public. They are respectively available only to the congregants or to people engaged to work at the mine.
The Tribunal determined that the Caper air operation is a closed charter even though any member of the public could buy a ticket through AAT Kings, and this finding is at the heart of CASA’s appeal.
The third type of air operation – regular public transport - is described in subreg 206(1)(c). Relevantly, RPT is for the purpose of “transporting persons generally” in accordance with a fixed schedule to and from fixed terminals over specific routes.
Section 28 imposes the requirement that CASA must issue an AOC only if satisfied in relation to various safety matters. Section 28(1) provides:
CASA must issue AOC if satisfied about certain matters
(1) If a person applies to CASA for an AOC, CASA must issue the AOC if, and only if:
(a)CASA is satisfied that the applicant has complied with, or is capable of complying with, the safety rules; and
(b)CASA is satisfied about the following matters in relation to the applicant’s organisation:
(i)the organisation is suitable to ensure that the AOC operations can be conducted or carried out safely, having regard to the nature of the AOC operations;
(ii)the organisation’s chain of command is appropriate to ensure that the AOC operations can be conducted or carried out safely;
(iii)the organisation has a sufficient number of suitably qualified and competent employees to conduct or carry out the AOC operations safely;
(iv)key personnel in the organisation have appropriate experience in air operations to conduct or to carry out the AOC operations safely;
(v)the facilities of the organisation are sufficient to enable the AOC operations to be conducted or carried out safely;
(vi)the organisation has suitable procedures and practices to control the organisation and ensure that the AOC operations can be conducted or carried out safely;
(vii)if CASA requires particulars of licences held by flight crew members of the organisation—the authorizations conferred by the licences are appropriate, having regard to the nature of the AOC operations;
…
(Emphasis added.)
This provision, together with many others, illustrates the statutory focus on safety considerations in relation to the issue of AOCs. Other provisions illustrate the same focus in relation to retention of an AOC.
THE TRIBUNAL DECISION
The Tribunal heard evidence as to contractual arrangements between Caper and Australian Adventure Tours Pty Ltd, a subsidiary of AAT Kings, with regard to the flights to Bathurst Island. The Tribunal found that Australian Adventure Tours, trading as Tiwi Tours (“AAT Kings”), operated one day tours to Bathurst Island each weekday morning from Monday to Friday, and to do so it chartered aircraft from Caper which flew to and from Darwin to Bathurst Island.
At paragraph 9 of its decision the Tribunal described the tours as follows:
Tiwi Tours advertises one day tours of Bathurst Island, which is immediately to the north of Darwin. The one day tour of Bathurst Island includes transport to and from the island by Caper, trading as Direct Air. The brochure advertising the Tiwi Tours states that flights operate between Darwin and Bathurst Island between Monday and Friday from the Direct Air terminal. Check in time is said to be 7.30am for an 8.00am departure and the return to Darwin airport is said to be at approximately 5.15pm. The costs of the tour are broken down into the land content and the return flight from Darwin. The tour, which includes the flight to and from Bathurst Island, involves a guided tour of the Aboriginal community of Nguiu including a museum and displays of traditional art. There are performances by local Aboriginals including a smoking ceremony. The tour also includes a drive through the Bathurst Island wilderness and lunch at a local waterhole, where tourists are able to swim. These tours on the island are conducted by mini-bus or four-wheel drive vehicle.
At paragraph 23 of the decision the Tribunal set out various factual findings as follows:
(a)AAT Kings and Caper are not related entities having discrete directors and shareholders;
(b)Caper provides aircraft for AAT Kings to enable it to carry tourists to and from Bathurst Island in the course of [AAT Kings] organised tours of Aboriginal arts and other sites of interest;
(c)although the costs of the tour are advertised indicating the tour and airfare components as discrete items, the combined price is paid by intending tourists to AAT Kings only;
(d)although the travel brochures prepared by AAT Kings state that the flights depart Darwin between March and November, Monday to Friday at 8.00am, that does not mean that the flights will necessarily take place at that time on every day;
(e)whether or not a flight is undertaken by Caper for AAT Kings depends on the number of tourists who have booked a flight on any particular day on which they wish to undertake the tour;
(f)tours are generally booked through travel agents or through AAT Kings in Darwin direct, but Caper does not take any bookings or receive directly any money for the transport of passengers;
(g)the persons to whom the tours are open are members of the public at large;
(h)Caper has a contractual arrangement with AAT Kings, which is regularly reviewed, regarding the price which AAT Kings is to pay Caper for the hire of its aircraft on an aircraft by aircraft basis;
(i)persons who are not booked on an AAT Kings’ tour are not permitted to travel on aircraft which have been booked by AAT Kings for their tours;
(j)the size and type of aircraft provided by Caper is determined by the number of passengers on any particular day which is notified to Caper on the day prior to the flight;
(k)if no tourists are booked on a particular day or if there are insufficient tourists booked for a particular day, the flights do not take place and in fact passengers, such as Mr Saffery [a witness for CASA], are offered an alternative day on which they can undertake the tour; and
(l)the terms and conditions of carriage between AAT Kings and Caper, which are set out in AAT Kings information statement following the booking of a flight, have not been discussed with or agreed to by Caper.
Additionally, at paragraph 11 the Tribunal found that the agreement was not exclusive to Caper, in that if Caper did not provide the aircraft AAT Kings could charter an aircraft from another air operator.
Caper also seeks to rely on other factual findings made by the Tribunal as follows:
(a)the advertising for the tour is undertaken by AAT Kings trading as Tiwi Tours and not by Caper;
(b)there is no separate breakdown of costs, that is the participant pays a lump sum fee for the entire tour which includes the provision of services above and beyond the mere flight;
(c)there is a breakdown of the costs as between the air travel component and the land tour component so as to provide a cost for those persons who wish to undertake the aboriginal art tour from the island itself;
(d)there is no suggestion that a person can undertake the air travel component and not undertake the art tour component;
(e)Tiwi Tours undertakes a separate hire of the aircraft from Caper, and the type of aircraft that it hires depends upon the number of tour participants; and
(f)Tiwi Tours pays a set fee for the hire of the aircraft regardless of how many participants are undertaking its tour.
The first question the Tribunal dealt with was the different types of charter operation covered by subregs 206(b)(i) and (b)(ii). The learned Tribunal member said at paragraphs 26 and 27:
[26]The first matter which I need to address is the distinction between CAR 206 (b)(i) and (b)(ii). The two types [of] charter referred to in those subsections are commonly described as open charter (b)(i), and closed charter (b)(ii). The distinction is that an open charter is one where passengers or cargo are carried where there are no fixed schedules or, in other words, on an on demand basis. The closed charter situation arises where the carriage of passengers or cargo occurs in accordance with fixed schedules and between fixed terminals.
[27]The expression fixed schedules is not defined in the regulations and therefore it must be given its ordinary meaning taking into account the context in which the expression appears in the regulation. The adjective fixed means:
1. fastened; immoveable. 2. unvarying; unchanging; set or established fixed ideas. (Chambers 21st Century Dictionary)
The noun schedule is defined as:
1. a list of events or activities planned to take place at certain time. 2. the state of an event or activity occurring on time, according to plan we are well behind schedule. 3. any list or inventory. 4. a timetable or plan.
The first question then is whether the flights Caper conducts for AAT Kings can be said to be according to a fixed schedule.
The Tribunal found that the Tiwi Tours ran to a schedule under which the flights were fixed to depart from Darwin for Bathurst Island each weekday at 8.00 am. It also found that if there were not at least two or more passengers booked for a tour on a particular day the flight did not proceed and the intending passenger was asked to fly on another day. At paragraph 29 the Tribunal held that they were on a fixed schedule, noting:
…the expression fixed schedules is a reference to an unvarying or unchanging timetable or plan. It is not a reference to what in fact occurs on any particular day. AAT Kings plans to fly everyday between Monday and Friday between the months of March and November, departing at 8.00am for Bathurst Island. In my opinion, that satisfies the expression fixed schedules. The fact that flights take place only when sufficient passengers are available does not alter my opinion. CAR 206(1)(b) is concerned only with the plan or timetable when it refers to fixed schedules rather than what in fact occurs on any particular day. Therefore, I find that Caper’s operations when conducting flights for AAT Kings to Bathurst Island are in accordance with fixed schedules. Those operations are either closed charters or RPT.
(Emphasis added.)
In dealing further with the provisions of subreg 206(1)(b) the Tribunal also had to determine whether the flights were to and from fixed terminals. The Tribunal considered that they were, noting at paragraph 30:
The next expression in CAR 206 which needs to be understood is fixed terminals. Again, this expression is not defined in the CARs. I confess to having difficulty in understanding this expression and its purpose in the context of CAR 206. That may be because the word terminal is commonly used in the aviation industry to describe a building or structure at an airfield. However, I do not believe that is the intended meaning as the expression is used in the CAR. It is more likely to be a reference to a boundary or terminus. In other words, it is the end of a route, not merely an intermediate stopping place.
The Tribunal was fortified in this approach by an analysis of the history of the Regulations, and said at paragraph 35:
Quite plainly there are no proposed or even possible intermediate stopping places between Darwin and Bathurst Island. It follows that the expression fixed terminals is a reference to those two terminals. Therefore, I find that Caper conducted operations involving the carriage of passengers or cargo for hire or reward in accordance with fixed schedules to and from fixed terminals.
In relation to the central issue as to whether the seats on the flights were available for use by persons generally, the Tribunal held at paragraph 36:
The only remaining issue with CAR 206(1)(b) is whether the circumstances in which Caper carries passengers and or cargo to Bathurst Island fall within the description: in which accommodation in the aircraft is not available for use by persons generally. The expression is to be distinguished from that used in CAR 206(1)(c) which is: the purpose of transporting persons generally, or transporting cargo for persons generally. These two adverbial clauses have been the cause of numerous disputes regarding the distinction which should be drawn between RPT and charter operations. Both clauses are governed by the word generally, an adverb. The word generally is defined as:
1. usually. 2. without considering details; broadly. 3. as a whole; collectively. (Chambers 21st Century Dictionary)
3. In a general sense or way; as opp. to specially. (The Shorter Oxford English Dictionary)…
The learned Tribunal member embarked upon a detailed grammatical analysis of the words in subregs 206(1)(b)(ii) and (c) having regard to the adverb “generally” that appears in each. At paragraph 36 he said:
The adverb generally, in the first clause, emphasises the availability for use by persons of accommodation in the aircraft while in the second clause, it emphasises the transport of persons or cargo. The word transporting is of course, strictly speaking, a gerund as it describes the action. However, nothing turns on that. In my opinion, it follows that the two clauses when read according to their grammatical construction, refer to general availability for use by persons and the general transport of persons or cargo. In the context in which it appears in the two clauses, the word generally means broadly or in a general sense or way, as opposed to specially. It says nothing about the persons.
At paragraphs 37, 38 and 39 of the decision the learned Tribunal member stated:
[37]Having explained some elementary rules of grammatical construction, it should be apparent that the first clause (CAR 206(1)(b)(ii)) means that a closed charter is one in which accommodation on the aircraft must not be available to those people who are only using the aircraft to travel from destination A to destination B. Such persons do not have a common purpose for travel to destination B. Their reasons for using the aircraft are simply to arrive at a common destination and then to undertake any variety of individual activities depending upon what each passenger had in mind was the purpose of his or her travel.
[38]To fall within the closed charter provision under CAR 206(1)(b)(ii), those persons who travel to a destination terminal must all have the same special purpose for travelling to that destination. In my opinion, that is what distinguishes a closed charter from RPT. For example, mining companies and off-shore oil companies in the north west of Western Australia operate charter flights to and from Perth for their employees on a regular basis. All of the persons on board those charter aircraft are being transported to their destination terminal so that they can conduct their work for the company which has chartered the aircraft or an associated entity. Their purpose is common even though their occupations may vary. The company may also allow non-employees to utilise the transport, so long as the use bears some relationship to the work being undertaken by the company. Other than the common purpose for undertaking a flight, those persons who travel by closed charter may have no other relationship with their fellow travellers.
[39]Unfortunately, I have not come across any material which would indicate that the two clauses I have referred to above in CAR 206 have undergone any proper analysis having regard to their grammatical construction. It therefore comes as no surprise to me that the interpretation of those clauses by CASA, and by Tribunals and Courts, may not be in accordance with the opinions I have expressed above…
Taking this grammatical or literal approach to understanding the provisions, the Tribunal reached the position that a closed charter under subreg 206(1)(b)(ii) is not concerned with whether aircraft are made available for use by members of the public, but is concerned with the purpose for which those persons have acquired seats in the aircraft. The Tribunal considered that the purpose of the passengers purchasing seats on the aircraft in order to attend the Tiwi tour was a specific purpose as opposed to the general purpose of transportation between Darwin and Bathurst Island. It determined that a commercial air operation is a “closed charter” if the seats on the aircraft are not available to those people who are only using the aircraft to travel from one destination to another. This test requires that the purposes of the passengers for using the aircraft be ascertained, because only those who share the specific purpose, in the current case attending the Tiwi tour, could be included in the closed group.
In a CASA policy document in evidence, titled “Regulatory Policy - Classification and Regulation of “Closed-Charter” Operations under CAR 206(1)(b)(ii)” (“the CASA regulatory policy”), CASA set outs its approach to the classification of charter operations under subreg 206(1)(b)(ii). The policy records the difficulties faced by CASA with respect to determining the operation of the provision when another entity is interposed between an operator and the passengers who travel on the aircraft, and where that interposed entity sells the seats on the aircraft to the passengers. It notes that the individual passengers who travel on such air services only have a contractual arrangement with the interposed entity and not with the operator.
The policy states:
On this basis, it may also be said that the operator has not made accommodation on the aircraft available to persons generally, since it has made accommodation available only to the entity.
It also provides:
In such cases, especially where the entity is a travel or booking agency that advertises and sells seats on the aircraft it has chartered to anyone who is prepared to pay the cost for a seat, it is CASA’s view that the operator and interposed entity are part of a single enterprise, effectively offering accommodation on the aircraft for use by persons generally.
The Tribunal rejected the CASA regulatory policy and this interpretation, in line with its grammatical analysis of the provisions, observing at paragraph 41:
The problem with this statement should be immediately apparent. It is a paraphrasing of the adverbial clause although the word use is omitted. The clause in fact deals with the general availability for use of the aircraft by persons, and not making accommodation available to persons generally. With respect to the drafter of the policy document, it is this type of interpretation, ie. reading the adverb generally as qualifying the noun persons, which has caused difficulty in understanding the closed charter provision.
The Tribunal determined that the purpose of the Caper air operation was a charter purpose which fell within subreg 206(1)(b)(ii). At paragraphs 62 to 63 the Tribunal stated:
[62] In my opinion, Caper’s operations between Darwin and Bathurst Island fall within the definition of a closed charter set out in CAR 206(1)(b)(ii). When the regulation is read so as to give effect to its grammatical construction, it is clear that it is not concerned with whether aircraft are made available for use by persons who are travelling as members of the public as opposed to a private group which, while nevertheless comprising members of the public, also has some other distinguishing feature. It is concerned with the purpose for which those persons have acquired accommodation in the aircraft.
[63]The evidence clearly indicates that the Caper aircraft, which are the subject of this matter, are only made available for use by persons attending the Tiwi island tour. That is a specific purpose as opposed to the general purpose of transportation between Darwin and Bathurst Island…
The Tribunal decided at paragraphs 78 and 79:
[78]CASA contended that Caper, contrary to its AOC, was conducting RPT operations between Darwin and Bathurst Island. CASA claimed that Caper’s operation did not fall within the description of charter operations in either CAR 206(1)(b)(i) or (ii). That was because those operations were in accordance with fixed schedules, to and from fixed terminals, for the purpose of transporting persons or cargo generally.
[79]Although I have found that Caper operated between Darwin and Bathurst Island in accordance with fixed schedules, to and from fixed terminals, that operation does not fall under the definition of RPT… That is because the accommodation on Caper’s aircraft in that operation is not available for use by persons generally…
In effect, the Tribunal found that the Caper air operation was not outside the scope of the authorisation in its AOC, and there was no basis for the cancellation of the authorisation. Caper was permitted to continue with its charter operation between Darwin and Bathurst Island.
THE APPEAL
The Supplementary Notice of Appeal provides:
THE QUESTIONS OF LAW raised on appeal are:
1.Is the interpretation and construction given to regulation 206(1)(b)(ii) of the Civil Aviation Regulations 1988 (CARs) by the Tribunal correct as a matter of law?
2.Are the facts as found by the Tribunal capable of supporting a finding or conclusion that the respondent was engaged in air operations for “charter purposes” that fall within regulation 206(1)(b)(ii) of the CARs?
The grounds of the appeal are set out as follows:
1.The Tribunal erred in law by failing to construe regulation 206(1)(b)(ii) of the CARs correctly.
2.The Tribunal erred in law by construing regulation 206(1)(b)(ii) of the CARs according only to its grammatical meaning and in failing to consider the provision in its statutory context in accordance with applicable principles of statutory interpretation.
3.The Tribunal erred in law by failing to construe regulation 206 of the CARs in a manner that would promote the purpose or object of the CARs and the Act in preference to a construction that would not promote that purpose or object contrary to section 15AA of the Acts Interpretation Act 1901 (Cth).
4.In seeking to determine whether the air operations of the respondent fell within the meaning of “charter purposes” as that expression appears in the r 206(1)(b)(ii) of the CARs the Tribunal erred in law in asking itself the wrong question by referring to the “purpose” or “reasons” for travel held by the passengers on board an aircraft when the correct test requires that the objective purpose of the air operator in conducting an air operation be identified.
Both questions of law set out in the Supplementary Notice of Appeal are proper questions of law within the meaning of s 44 of the AAT Act. The proper construction of words and composite phrases used in a statute, and whether facts found by the Tribunal fall within or without a statute, is a question of law: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 to 288 per Neaves, French and Cooper JJ.
CONSIDERATION
The effect of s 27 of the Act is that if a commercial air activity is not prescribed in reg 206 then the operator of the aircraft does not require an AOC. It is common ground between the parties that:
(a)in order to operate a commercial air charter service an AOC is required by operation of subreg 206(1)(b):
(b)Caper holds an AOC, issued on 10 Feb 2010, authorising it to conduct passenger carrying charter operations, in Australian territory, in specified Australian registered aircraft; and
(c)Caper is not and has never been authorised under its AOC to operate RPT services as defined by subreg 206(1)(c).
There is no challenge to any of the factual findings made by the Tribunal. It is common ground in the appeal that the flights to Bathurst Island were in accordance with fixed schedules to and from fixed terminals. The central question is whether, on a proper construction of the Act and reg 206 and on the facts found, the Caper air operation is a closed charter under subreg 206(1)(b)(ii). The question as to whether it is RPT under subreg 206(1)(c) is a related enquiry. As Caper correctly notes, if its operation is not within that provision it is not in breach of its AOC.
For the Caper air operation to be a closed charter within subreg 206(1)(b)(ii) it must be a charter which is not open to persons generally. The provision only applies if “the accommodation in the aircraft is not available for use by persons generally”. As I indicated earlier, there is no argument that the provision applies to charters for such groups as church congregations and mining company employees as it is unarguable that seats on such chartered aircraft are not available for use by the general public.
The more difficult circumstance is the one which arises in this case where a commercial entity is interposed between the AOC holder which is authorised to operate charter services and the passengers who are carried on the aircraft. On the facts found it is AAT Kings which reserves the aircraft from Caper. Caper makes available its aircraft to AAT Kings not to the passengers, and AAT Kings sells the seats on the aircraft to the passengers. The passengers have a contractual relationship only with AAT Kings and not with Caper. Caper argues that as AAT Kings has exclusively secured the seats on the aircraft they are not “available for use by persons generally” and the operation falls within subreg 206(1)(b)(ii).
It is uncontroversial that the flights are on a fixed schedule to and from fixed terminals and over a specific route. It is of significance that the Tribunal also found that the persons to whom the tours are open are members of the public at large. If, as I have found, a proper construction of subreg 206(1)(b)(ii) means that the seats on the relevant aircraft must not be available for use by the general public, then the Caper air operation does not fall within the provision. As I explain, Caper is in fact engaged in RPT and it is therefore engaged in air operations outside the authorisation in its AOC.
Interpreting regulation 206 by reference to its purpose or objects
The rules of statutory construction are well established. Section 15AA of the Acts Interpretation Act 1901 (Cth) provides:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
In construing a statutory provision a court or tribunal should always begin by examining the context of that provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (“Project Blue Sky”) per McHugh, Gummow, Kirby and Hayne JJ. As the plurality observed at [69]:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
As a result the Tribunal was required to look behind the immediate textual content of subregs 206(1)(b)(ii) and (c) and carefully consider the scheme of the statutory provisions that prescribe the “commercial purposes” for which an AOC is required. The determination of the dispute rested on a choice between two different interpretations, and in construing the two provisions the Tribunal was required to apply an interpretation that would promote the purpose of the Act rather than one that would not. In my view it did not do so.
Of course, the task of determining the meaning of individual words within a statutory phrase is bound up in the construction of the phrase in question, and the meaning given to the individual words ultimately provides the construction that one gives to the phrase taken as a whole: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396 to 397 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ. In the present case much turns on the meaning given to the phrase “the accommodation in the aircraft is not available for use by persons generally” in subreg 206(1)(b)(ii). A related enquiry is the meaning given to the phrase “the purpose of transporting persons generally” in subreg 206(1)(c).
In Project Blue Sky at [78] the plurality explained:
…the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out:
The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Considerations of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with. (Footnotes omitted).
In taking the strict grammatical approach that it did the Tribunal fell into error. It made little reference to the purpose of the Act as a source of interpretive insight into the meaning of the phrase as I have set out, or to the regulatory scheme and the role played by reg 206. As I set out below, the purpose of the Act and Regulations is plain, yet the Tribunal did not refer to or call in aid the provisions of s 15AA of the Acts Interpretation Act so as to construe the provisions in a way that would promote this purpose. In the result it chose a construction which would not promote the purpose.
The “safety purpose” of the Act
There can be no doubt that the Act and the Regulations are focused on the enhancement of civil aviation safety in Australia. This purpose is explicit in s 3A of the Act which describes the main object as “maintaining, enhancing and promoting the safety of civil aviation with particular emphasis on preventing aviation accidents and incidents.”
This “safety purpose” is also plain from s 9A which requires CASA to treat air safety as the most important consideration when exercising its powers or performing its functions.
Caper argues that the obligation imposed upon CASA in s 9A relates to the way that CASA carries out its functions and contends that it does not assist in construing the Act and Regulations. I do not accept this. CASA is the statutory authority that regulates and ensures standards of safety with respect to civil aviation. That the Parliament saw fit to impose an obligation on CASA to treat safety as its paramount concern is a relevant matter in construing the purpose of the Act.
Numerous other provisions throughout the Act confirm the “safety purpose”, including:
(a)the safety related considerations in subs 9(1), (2) and (3);
(b)the requirement in s 28 that CASA must issue an AOC only if it is satisfied that the applicant has complied with, or is capable of complying with, the safety rules, and is also satisfied about various other safety related matters set out in subs 28(1)(b);
(c)CASA’s powers to impose and vary AOC conditions and to suspend or cancel an AOC under s 28BB (noting that in doing so it is required to treat aviation safety as its paramount concern); and
(d)CASA’s powers under Division 3A to immediately suspend an AOC if it considers that an AOC holder is engaging in conduct that constitutes, contributes to, or results in, a serious and imminent risk to air safety.
The safety issue
It appears that the Tribunal considered that whichever of the two available interpretations applied made little difference to civil aviation safety. For example, at paragraph 39 of the decision the learned Tribunal member referred to “distinctions being drawn between certain operations which, not only make no sense, but also have nothing whatsoever to do with aviation safety.” At paragraph 43 he said “[w]hether the passengers who fly on these aircraft have some pre-existing relationship [such as employer / employee] makes no difference to the safety of that operation.”
The Tribunal also said at paragraph 43, that any safety issues that may arise in respect of a particular commercial charter operation could be addressed by imposing conditions on the air operator’s AOC. However, this could be said about any AOC operation, and it is insufficient as an answer to the requirement to construe the relevant provisions having regard to their context and purpose.
Caper concedes that different levels of safety regulation are required by the different types of commercial air operation set out in reg 206. It also accepts that the most stringent safety requirements are imposed on regular public transport operations under reg 206(1)(c).
Caper argues, and I accept, that aviation safety risks are not necessarily more pronounced just because a particular air service constitutes RPT rather than a charter. For example, a once per week RPT service by a five seat passenger plane from Moorabbin airport to King Island might involve less risk than a closed charter service from Port Hedland for “fly in-fly out” mining company workers working at a remote location, which had numerous flights per week and carried thousands of workers over the course of a year. There was no evidence before me as to any necessary elevation of aviation risk arising from RPT operations. It depends on the particular RPT and charter operations.
However, as I detail at [77] to [80] below, in reg 206 Parliament created a graduated approach to the regulation of air operators based on the purpose of the different types of commercial air operations and having regard to the safety of the fare paying general public. There is a clear parliamentary intention to more stringently regulate RPT operations (open to the carriage of the general public as they are) than charter operations.
In my view it is appropriate that I approach the interpretation of the relevant provisions on the basis that the legislature and CASA have imposed more stringent safety requirements on RPT operations than on charter operations for a reason, rather than on a whim. I respectfully agree with the observations of a magistrate, quoted with approval by Bollen J in an appeal, in Southern Cross Airlines Pty Ltd v McNamara (1989) 97 FLR 72 (“Southern Cross Airlines”) at 81:
If the aircraft on that flight was “available” for the transportation of members of the public it falls within the definition [of regular public transport]. This is presumably because Parliament intended high standards and infrastructure be in place where an aircraft is available for the transport of members of the public.
The potential aviation safety implications of the alternative available interpretations of subregs 206(1)(b)(ii) and (c) are also referred to in CASA’s regulatory policy. It provides:
[13]‘Interposed entity’ models often involve potentially complex and convoluted interpersonal and inter-corporate arrangements, the details of which can be difficult to ascertain with clarity and accuracy. Aspects of such arrangements pertinent to the judgements CASA needs to make for the purposes of determining whether certain operations are properly classified as charter operations under CAR 206(1)(b)(ii) or are PT operations can be obscure - and sometimes deliberately obscured. Indeed, it is not unusual to find purportedly ‘closed’ groups that have been created solely for the purpose of providing a conduit through which members of the public (i.e. persons generally) might be funnelled onto an aircraft.
…
[16]Neither should CASA be put to the task of undertaking subtle contractual arrangements or the nuances of complex relationships amongst and between persons (natural and corporate) for the purpose of classifying an operation and identifying the appropriate level of safety at which those operations are required by law to be conducted. This is a dauntingly difficult task in the best of circumstances, and all the more so where there may be a calculated effort to distort or obscure the true nature of such relationships.
[17]For CASA, the distinction between ‘closed charter’ and RPT operations should reflect relevant safety-related considerations, not pre-eminently political judgements about the social utility of the provision of air services in particular circumstances, or the inevitably contestable results of a forensic ‘shell game’. To that end, CASA will focus on the concrete, practical determination of whether, in fact, accommodation in an aircraft is available to persons generally - regardless of the means by which, or the agency through which, such accommodation is made available.
The policy states that the distinction that CASA seeks to be drawn between closed-charter and RPT operations is a “critical safety-related” one. One can readily see a basis for CASA’s concerns.
Caper argues that I should treat CASA’s regulatory policy as of no assistance in interpreting the Act and Regulations. There can be no doubt that CASA cannot dictate my interpretation of the Act through the policy and it did not seek to do so. I did though find it of some assistance insofar as it set out CASA’s view of the safety ramifications of the available interpretations.
The error in the Tribunal’s approach to “persons generally” in regulation 206
The difficulty in construction primarily relates to the phrase in subreg 206(1)(b)(ii) which defines the air operation as being a closed charter only if “accommodation in the aircraft is not available for use by persons generally”. A related enquiry concerns the phrase in subreg 206(1)(c) “the purpose of transporting persons generally” which describes an element of an RPT operation.
As Project Blue Sky indicates, it was necessary for the Tribunal to identify the meaning of each of these phrases having regard to the purpose of the Act and their context in the Regulations. Instead of taking this approach, the Tribunal largely broke these phrases down into their constituent elements such as “persons generally”, even considering the word “generally” in isolation with an emphasis on its role as an adverb. Its grammatical analysis was overly literal and took no account of purpose and context. Both parties accept that the Tribunal’s approach in this regard was incorrect.
As a result the Tribunal reached a construction which was strained and unrealistic and failed to prefer the interpretation that would best achieve the safety purpose of the Act. This is perhaps best seen in the finding that the words “persons generally” in regs 206(1)(b)(ii) and (c) is not a reference to the general public. The Tribunal said at paragraph 36 that these words said nothing about persons at all. In the appeal, both parties accept that the Tribunal was in error in this regard, although Caper says that the Tribunal’s decision is in any event correct.
CASA also points to the legislative history which shows that the expression in reg 191 of the Air Navigation Regulations, the predecessor to reg 206, was “members of the public” which was changed to “persons generally” when reg 206 was introduced. Whilst the words were refined there was no apparent intention to alter their meaning.
Having regard to the context and purpose of the legislation, it is clear that the words “persons generally” in both provisions is a reference to the general public. The Tribunal’s interpretation must be rejected.
Its incorrect grammatical approach also led the Tribunal to conclude that the words “accommodation in the aircraft is not available for use by persons generally” is not a reference to seats on the flight not being available for the use of the general public. Based on a conclusion that the adverb “generally” does not qualify or add meaning to the noun “public” and instead qualified the adjective “available”, the Tribunal reconstructed the provision so that its meaning was to require that the accommodation on the aircraft be not “generally available” for use by persons. This conclusion too is inconsistent with the scheme of the legislation and its safety objectives.
It also leads to two potentially absurd results. The first arises from the way that this construction focuses upon the physical availability of “accommodation” on aircraft (which can only mean cargo space or seats), and whether or not the accommodation is “generally available” to persons wishing to be carried on the aircraft. It means that an air operation may qualify as a charter operation merely by an air operator’s “cordoning off” some parts of the accommodation so that they are not made available to passengers.
Stratagems by air operators to avoid being treated as an RPT operation are apparently not unknown. For example, Southern Cross Airlines was an appeal to the Supreme Court of South Australia from the decision of a Magistrate. The airline which was licensed to provide charter services only had been convicted of conducting RPT in breach of the Air Navigation Regulations (the predecessor to the present regulations which are relevantly similar). Part of its defence was an attempt to, wrongly, portray the service as partly for freight rather than passenger carriage. In deciding whether the operation was a charter service or regular public transport the Magistrate said, and Bollen J restated, at 80:
In approaching this task, it seems to me important for a court to have a look at the reality of the situation and not just simply the way a party seeks to dress the operation up. If the reality of the situation is that aircraft is available for the regular transportation of members of the public by fixed routes and at fixed times, in other words, a normal passenger transport service, then the fact that there are some slightly odd aspects to it not normally found within the larger airlines, should not matter. As Mr Justice Cox said in a different context in Chegwidden v White: ‘I cannot believe that it was the intention of the Executive Government of the Commonwealth to allow the regulations to be evaded by such a simple stratagem.’
In other words, if the aircraft operator should really be complying with the higher standards thought necessary by the Commonwealth when members of the public are conveyed regularly on aircraft, then the fact that the operation tries to dress up the operation in some small ways, should not deter a court from categorising an operation into its proper category.
Bollen J agreed with the Magistrate’s approach and I respectfully do as well. I accept that the facts in that case are different to those before me now. In particular, there is no evidence that Caper has tried to “dress up” its operation to appear to be something that it is not. Even so, his Honour’s observations are apposite as they illustrate that the critical concern of the Court should be the substance and effect of an arrangement rather than how it appears. In the present case the substance and effect of the arrangement is that the flights to Bathurst Island are available to the general public.
The second potentially absurd result arising from the Tribunal’s approach is that, taken to its logical extreme, a travel company could charter aircraft from an AOC holder with a charter authorisation and schedule and conduct regular flights on the main business commuting routes like Melbourne to Sydney. The travel company would sell the tickets and it could effectively construct the “special purpose” required by the Tribunal’s decision through package arrangements. These flights, which would ordinarily attract the level of safety regulation reserved for RPT, would be regulated only as a closed charter.
Such structuring is also not new, and the Regulations should be construed so that Parliament’s intention cannot be so easily evaded. In Chegwidden v White (1985) 59 ALR 548 (“Chegwidden”) the prosecution of a pilot for a breach of the Air Navigation Regulations was heard in the Supreme Court of South Australia. The pilot had arranged to carry a group of people to and from Kangaroo Island, with a week’s holiday accommodation on the island and the use of a car whilst there, for an overall price of $500. Although he held an unrestricted private pilot’s licence he did not hold the appropriate commercial licence to carry passengers for “hire or reward”. The case turned on the definition and application of the words “for hire or reward”. Two competing interpretations were possible. The narrow reading would require proof by the prosecution that some part of the $500 fee charged by the pilot was explicitly and directly referable to the flight. The broad reading would bring the package activity (where there was no breakdown of any component to be spent on the flight as distinct from the overall holiday) within the regulations.
Cox J considered that the regulations should be read with regard to the purpose of promoting safety, noting at page 552:
If there is any ambiguity about it, the Court should bare in mind the evident purpose of the Regulations in this respect is to promote air safety… and should give the Regulations a liberal and remedial construction. It would be strange if a pilot commits an offence if he charges $500 to fly a passenger to Sydney, but not if he charges him $600 for a trip that includes a night at the opera as well. I cannot believe that it was the intention of the Executive Government of the Commonwealth to allow the Regulations to be evaded by such a simple stratagem.
I respectfully agree with his Honour.
Taking the same approach, in my view it would be strange if Caper’s flights between Darwin to Bathurst Island stand to be regulated as RPT if Caper charges a fee to fly members of the public on that route, but regulated as a closed charter if a tour company is interposed and the tour company provides a tour on Bathurst Island for a combined fee which includes a flight component and a tour component. Again, it is the substance and effect of the arrangement that is important.
Properly construed the meaning of reg 206 is clear. Its scheme is to provide for the regulation of a range of different aviation “purposes” or air operations arranged with an eye to different levels of risk to the public. It starts with “aerial work activities in subreg 206(1)(a) such as aerial surveying, aerial spotting or photography, and agricultural operations. Such operations will often not involve the carriage of passengers, but if they do the passenger will usually have a specific reason or task to perform whilst they are on board the aircraft. This first level of commercial air operation attracts the lightest regulatory touch available under reg 206.
The next level of air operation is charters - both open and closed - as described in subregs 206(1)(b)(i) and (ii). These types of operation attract a higher level of regulatory attention. The risk to the public in such charter operations is limited in different ways in each category. In an open charter, carriage of the general public is contemplated but only if it is not to be performed on a fixed schedule to and from fixed terminals. In a closed charter, carriage may be undertaken on a fixed schedule to and from fixed terminals but the general public may not be carried. Whatever risks the passengers are exposed to in a closed charter, those risks are confined to a closed group.
The third and final level, falling under subreg 206(1)(c) – as RPT, is an air operation which carries the general public on an aircraft operating on a fixed schedule to and from fixed terminals. The legislature imposes more stringent safety standards on RPT operations than it does on the other types of operation. For example, the Civil Aviation Orders require that RPT operators must establish a safety management system and must ensure that pilots are trained in Instrument Flight Rules, whereas no such requirements are imposed on charter operators.
I accept CASA’s submission that reg 206 sets up a gradation of air activities or purposes which has regard to the safety risks to fare paying members of the general public, with aerial work purposes at the bottom level and RPT at the highest. Seen in this way the scheme of the Regulations is plain. CASA’s construction is to be preferred because it is consistent with the scheme of the Regulations and the purpose of the Act.
One further issue in the construction of subregs 206(1)(b)(i), (b)(ii) and (c) is the fact that the words “for hire or reward” appear in subregs 206(1)(b)(i) and (c) but not in (b)(ii). This difference was not significant to the Tribunal’s decision, but Caper submits that it indicates that the intervention of a charterer as the contracting party in a closed charter means that the passengers are not being carried for hire or reward. I am not inclined to agree, but it is unnecessary to reach a concluded view because nothing turns on it in the present case. I note too that the Tribunal found that Caper was receiving remuneration for its charter.
The Tribunal found that:
(a)Caper’s flights between Darwin and Bathurst Island were on a fixed schedule to and from fixed terminals;
(b)the tours were open to members of the public at large; and
(c)any member of the public might obtain a seat on the flight simply by contracting with AAT Kings to purchase a tour to Bathurst Island in response to its advertisements.
The ordinary meaning of the phrase “accommodation in the aircraft is not available for use by persons generally” is that seats on the aircraft are not available to the general public. The reality of the Caper air operation is that the accommodation in the aircraft is available for use by the general public. The simple point is that the advertised offer of the flight, albeit bundled with the tour, is made to any member of the public who wishes to avail themselves of the service. The situation is quite unlike that of a church group or mining company that charter regular flights from fixed terminals for congregants or workers respectively. These flights are not available to the general public.
Consistently with the rules of construction the expression “persons generally” should be given the same meaning in both subregs 206(1)(b)(ii) and (c). On a proper construction of these provisions and on the facts found, the Caper air operation should be seen not as a closed charter under subreg 206(1)(b)(ii) as the Tribunal found, but instead as RPT under subreg 206(1)(c).
The error in the Tribunal’s approach to “purpose”
The Tribunal drew a distinction between a closed charter operation and regular public transport by reference to the purpose of those being transported. It decided that the characteristic that distinguishes groups like the church group, the mining employees group, and tour participants from “persons generally” is that they have a shared common purpose. It said that this distinguishing relationship operates so that once it is formed these people are not members of the public or “persons generally”. On this interpretation where all the parties share a common purpose, such as the Bathurst Island tour, the relevant air service will be a closed charter.
The Tribunal stated at paragraph 38:
To fall within the closed charter provision under CAR 206(1)(b)(ii), those persons who travel to a destination terminal must all have the same special purpose for travelling to that destination. In my opinion, that is what distinguishes a closed charter from RPT.
The Tribunal noted that if the reasons for which passengers use an aircraft is simply to get to a common destination and then undertake individual activities those passengers do not have the requisite common purpose.
The Tribunal was led to this interpretation by the same incorrect grammatical and literal analysis. As I have already indicated, it failed to properly consider the context of the provisions or the purpose of the Act and Regulations. The Act and Regulations are plainly aimed at the enhancement of aviation safety, and are replete with references to the achievement of this objective by regulation of air operators (or AOC holders). The scheme of the Act and Regulations is directed to and dependent upon the activities of air operators, irrespective of any reason or purpose that may be held by a particular passenger or group of passengers that seek to be carried on a particular flight. It is very difficult to see how the regulation of aviation safety could be achieved by reference to the purposes of the passengers, and there is no compelling basis in the language of the Act or the Regulations in support of such a proposition or construction.
Again, the possibility of the absurd result referred to at [73] arises, and the Tribunal’s approach cannot be correct. As noted by Cox J in Chegwidden, it would be strange if Parliament intended that an air operator could so easily circumvent an important aspect of the regulatory scheme and by doing so expose members of the public to a lower standard of air safety. This is a strong indicator that Caper’s construction would not promote the purpose of the Act and that CASA’s construction is to be preferred.
Is there a difference between “carriage” and “transport”
Caper also contends that there is a distinction to be made between the words “carriage” in subreg 206(1)(b)(ii) and “transport” in subreg 206(1)(c). It says that this distinction goes to explaining the different functions of the two subregulations, and assists in understanding the need to enquire into the “purpose” of passengers flying on a closed charter. On Caper’s argument, “carriage” is transport other than travel for the sole purpose of getting from one place to another, and it requires consideration of the purpose for which the travel is undertaken. Caper notes that its operation only falls within subreg 206(1)(c) if it is for “the purpose of transporting persons generally.” It argues that the purpose of the flight is to undertake a tour of Bathurst Island and not the purpose of transporting the passengers from point A to point B. Caper says that its operation therefore falls outside subreg 206(1)(c). It correctly notes that if its operation falls outside that provision it is not in breach of its AOC authorisation.
I do not accept this contention. The Regulations do not indicate any requirement to consider the subjective purpose for a passenger’s journey. Part of CASA’s regulatory armoury is its power to issue, modify, suspend or cancel an AOC and I consider that, on a proper construction of the Act and Regulations, the purpose referred to in reg 206 is the purpose of the AOC holder. In the present case, CASA’s powers are directed at Caper and it is Caper’s purposes which must be of interest to CASA rather than the passengers’.
It is also difficult to see how any flight available to the public is not for “the purpose of transporting persons generally.” Whatever the ultimate purposes of the passengers taking a flight are, the purpose of that flight is to transport those passengers.
I also do not accept that the definition ascribed to the word “carriage” by Caper is correct. “Carriage” is a non-technical term and should be given its ordinary meaning. The Australian Concise Oxford Dictionary relevantly defines carriage as “the conveying of goods” although in this provision it plainly applies to the conveying of people as well. The dictionary definition of “convey” is “transport or carry”. “Transport” too is an ordinary word and should to be given its ordinary meaning. The dictionary definition of “transport” relevantly includes “take or carry (a person, goods, troops, baggage, etc) from one place to another”. Transport is used to describe the verb “convey” which in turn is part of the definition of “carriage”. The words “transport” and “carriage” are effectively interchangeable and “carriage” does not import a requirement to search for a passenger’s objective in travel beyond mere conveyance.
In my view the Tribunal made an error of law in embarking upon an enquiry as to the purpose for travel held by the passengers on board the aircraft. The correct test required the identification of Caper’s purpose in conducting the particular air operation.
CONCLUSION
The construction given to subreg 206(1)(b)(ii) by the Tribunal constitutes an error of law. I do not consider that the facts found by the Tribunal are capable of supporting the conclusion that the Caper air operation is a closed charter within that provision. The decision of the Tribunal must be set aside.
In its Notice of Appeal and its submissions CASA sought that the matter be remitted to the Tribunal to be determined according to law. However, given the decision I have reached, there is a real question as to whether the only result possible is that Caper’s operation constitutes regular public transport under subreg 206(1)(c).
I will allow seven days for the parties to file short submissions as to whether the matter should be remitted to the Tribunal to be determined according to law, or whether the Court should substitute a decision. The parties are requested to file short submissions as to costs within seven days. I am presently unaware of any reason why costs should not follow the event and in the absence of submissions I propose to make an order for the respondent to pay the applicant’s costs.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate:
Dated: 21 November 2012
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