Clarke and Civil Aviation Safety Authority
[2023] AATA 2628
•18 August 2023
Clarke and Civil Aviation Safety Authority [2023] AATA 2628 (18 August 2023)
Division: GENERAL DIVISION
File Number(s): 2021/2669
Re:Adam Daniel Clarke
APPLICANT
AndCivil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:18 August 2023
Place:Perth
The decision made by the Respondent on 29 April 2020 to refuse to grant the Applicant the relevant civil aviation authorisations under the Civil Aviation Act 1988 (Cth) is affirmed.
.............[Sgd]...........................................................
Deputy President Boyle
CATCHWORDS
CIVIL AVIATION – authorisations under the Civil Aviation Act 1988 – Civil Aviation Safety Regulations 1998 – whether defence force qualification is at least equivalent to civilian aviation authorisation – whether applicant is entitled to be granted civil authorisation based on defence qualifications – Tribunal not satisfied that the defence qualifications are at least equivalent to authorisations sought – decision affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth) s 4
Administrative Appeals Tribunal Act 1975 (Cth) s 29(2)(b)(i)
Air Navigation Act 1920 (Cth) s 3A
Civil Aviation Act 1988 (Cth) ss 3, 8, 9, 20AB, 98
Civil Aviation Safety Regulations 1998 (Cth) rr 11.055(1A), 11.068, 61.010, 61.035, 61.275, 61.285, 61.1175, 61.1235, 61.1250, 141.125
Mutual Recognition Act 1992 (Cth) s 29(1)
CASES
Cau v Victorian Building Authority [2022] FCA 45
Victorian Building Authority v Cau [2023] FCAFC 120
SECONDARY MATERIALS
Civil Aviation Safety Authority, Part 61 Manual of Standards Instrument 2014 (current as of 18 May 2021)
REASONS FOR DECISION
Deputy President Boyle
18 August 2023
THE APPLICATION
The Applicant seeks the review of a decision by the Respondent (CASA) made on 29 April 2020 (the Decision) to refuse to grant the Applicant certain civil aviation authorisations under the Civil Aviation Act 1988 (Cth) (CAAct).
Pursuant to s 31(2) of the CA Act, a decision to refuse to grant an authorisation is reviewable by the Administrative Appeals Tribunal.
While the Decision was made and communicated to the Applicant on 29 April 2020, CASA did not provide a written statement setting out its findings and reasons for the Decision until 6 April 2021.
The Applicant lodged the application for the review of the Decision with the Tribunal on 28 April 2021, that is within 28 days after the receipt of the written statement setting out the findings and reasons for the Decision. I am satisfied that the application was lodged within the time prescribed by s 29(2)(b)(i) of the Administrative Appeals Tribunal Act 1975 (Cth) and that the Tribunal has the power to review the Decision.
By the Decision, CASA refused to grant nine authorisations sought by the Applicant.
Prior to the commencement of the hearing, CASA conceded that a number of the authorisations sought by the Applicant should be granted and the Applicant advised that he no longer pursued certain authorisations. The authorisations still in dispute are:(a)Flight Instructor Rating: Grade 1 training endorsement (FIR-Grade 1);
(b)Flight Instructor Rating Instructor rating training endorsement (FIR-FIR);
(c)Flight Instructor Rating with multi-engine aeroplane class rating instructor training endorsement (FIR-MEAI); and
(d)Flight Instructor Rating Multi-crew pilot training endorsement (FIR-MCP).
THE LEGISLATION
CASA was established as a body corporate by s 8 of the CA Act.
Under s 9 of the CA Act, CASA is responsible for the safety regulation of civil air operations in Australia and of Australian aircraft outside Australia by means of, amongst other things:
(a)developing and promulgating appropriate, clear and concise aviation safety standards (s 9(1)(c)); and
(b)issuing certificates, licences, registration and permits (s 9(1)(e)).
Section 20AB(1) of the CA Act provides:
(1) 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.
Section 3 of the CA Act defines civil aviation authorisation as meaning:
…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).
The Civil Aviation Safety Regulations 1998 (Cth) (CASR) were made under s 98 of the CA Act which provides that the Governor-General may make regulations prescribing matters required or permitted by the CA Act to be prescribed or prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to the CA Act. The CASR are supported by legislative instrument Part 61 Manual of Standards (MOS).[1] Part 61 outlines the technical requirements for the issue or maintenance of the licences, ratings, authorisations and endorsements.
[1] Made under CASR 11.068 and 61.035 and section 4 of the Acts Interpretation Act 1901 (Cth).
BACKGROUND
The following background facts are taken from the Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) which are “largely accepted” by CASA.[2]
[2] CASA’s Statement of Facts Issues and Contentions (CASA SFIC) para 16.
The Applicant is a former member of the Australian Defence Force (ADF). He held the rank of Squadron Leader in the Royal Australian Air Force (RAAF).
The Applicant has extensive aviation operational and logistical experience in Saudi Arabia, Azerbaijan, South Sudan and Australia. He has approximately 4,910 hours of flying time, with 4,187 total military flying hours.
The Applicant has extensive experience training pilots in the ADF and in other jurisdictions. He is presently in Saudi Arabia instructing pilots converting to new aircraft.
In the ADF the Applicant was employed in the 2 Flying Training School (2FTS) as a PC-9/A Standards Flying Instructor. In this role, he developed and maintained instructor standards. He was also a remedial instructor for students that required additional instruction.
On 19 February 2020, the Applicant submitted Form 61-1ADF (dated 18 February 2020) to CASA.[3] This application was for a Flight Crew Licence on the basis of prior ADF experience. The application was signed by ADF Wing Commander Simon Ashworth, the Applicant’s Commanding Officer.
[3] T12.
By signing the application, Wing Commander Ashworth certified that he had reviewed the application and was satisfied that the Applicant met the standard that CASA required for granting the authorisations sought. Wing Commander Ashworth was the Applicant’s instructor on the F/A-18 from 2012 to 2015.
On 13 March 2020, a representative of CASA requested further documentation and a list of the authorisations sought.
On 20 March 2020, CASA wrote to the Applicant notifying him that CASA would fail to recognise the FIR-Grade 1, FIR-MCP, FIR-FIR, FIR-MEAI, FIR-Aero 1500, FIR-Aero500, Aero 500, and FIR-FAERO endorsements. CASA requested further evidence for the NVFR-MEA endorsement.[4]
[4] T14.
On 28 April 2020, CASA sent the Applicant correspondence regarding the authorisations that CASA was considering[5] and, on 29 April 2020, the Applicant received an email from CASA which stated:
I am taking this opportunity to close your licence resolution…If you would
like to follow up with the outcome you can contact the industry complaints
commissioner via email …
[5] T22.
On 6 April 2021, the Applicant received an email from CASA which stated:
CASA’s decision is reviewable & you can escalate your concerns to the Commonwealth Ombudsman or AAT.
THE ISSUE
Having quoted CASR 61.285, the Applicant’s SFIC[6] identified the issue for determination as being:
… the definition of equivalence and the approach of the [CASA] in determining whether ADF experience is equivalent to the civilian authorisations.
[6] para [2].
CASA in its SFIC identified the issue as being “whether Mr Clarke is entitled to be granted the endorsements that he seeks pursuant to Regulation 61.285 based upon his ADF qualifications and experience”.
For reasons that will become clear below, I find that CASA’s statement of the issue for determination is correct. The issue is whether the Applicant is entitled to the authorisations that he seeks because he holds, or has held, ADF flight crew qualifications that are at least equivalent to the civilian authorisations and he meets the aeronautical experience requirements for the authorisations.
CASR 61.285 relevantly provides:
61.285 Australian Defence Force qualifications—recognition
Despite anything else in this Part, a member or former member of the Australian Defence Force is taken to meet the requirements under this Part for the grant of a flight crew licence, rating or endorsement, other than an examiner rating, if the member:
(a) holds, or has held, a flight crew qualification granted by the Australian Defence Force that CASA is satisfied is at least equivalent to the licence, rating or endorsement; and
(b) …
(c) meets the aeronautical experience requirements for the licence, rating or endorsement …
THE PARTIES’ CASES
The Applicant
In relation to the authorisations still in issue,[7] the Applicant’s SFIC was to the following effect:
[7] See above para 5.
(a)The Applicant’s military qualifications are equivalent to or exceed the civil authorisations which are sought;
(b)The CASR are supported by Chapter 14 of the CASA Flight Crew Licencing Manual Version 12.2 (FCL Manual).[8] It is intended that these assist decision makers as an internal administrative guide. It is not legislative in character and thus should not rigidly be applied.
[8] A4. This has since been superseded by the version handed up at hearing (version 16.2).
(c)Table 14.12 of the FCL Manual provides a rigid Table of Conversion of Australian ADF Qualifications that allows the decision-maker to apply military authorisations to civil authorisations.
(d)The Applicant cites 14.2 and 14.3 of the FCL Manual and asserts that CASA has rigidly applied Chapter 14 of the FCL Manual and did not apply the permitted and appropriate discretion endowed by the legislation.
(e)It is contended by CASA that CASR 61.275 operates in a similar manner to CASR 61.285. CASR 61.275 allows holders of civil authorisations in overseas jurisdictions to have their equivalent authorisations recognised in Australia.
(f)CASA’s interpretation is incorrect. In the civil aviation context, foreign and domestic jurisdictions must have authorisations that allow the holder to conduct substantially the same activities to harmonise airspace. Differences in the levels of qualifications in different countries would significantly compromise the safety of air navigation with differently qualified pilots sharing the same airspace.
(g)By contrast, civil and military systems are different by design. The instruction in a military context serves a different purpose. Instructors educate pilots on operating faster, more complex aircraft in more dynamic environments than the civilian flight environment. In that sense, the qualification of military instructors is more advanced and specialised than the requirements for the equivalent civil authorisation. Many ex-air force pilots around the world tend to “retire” into civilian airline flying roles.
(h)The same definition of “equivalence” used in CASR 61.275 cannot be applied to a civil and military distinction. The jurisdictions themselves are not designed to carry out the same activities. Therefore, a different definition of equivalence must be used. Accordingly, there is no relevant definition of equivalence under the CASR.
(i)The ordinary definition of “equivalence” guided by that in the Macquarie Dictionary is relevant in determining the intention of the legislation.
(j)Applying the first definition in the Macquarie dictionary, “equal in value, measure, force, effect, significance”, equivalent authorisations are not a determination of qualification equivalence, but the quality and competencies demonstrated by the application that would activate CASA’s discretion. This would be consistent with CASA’s obligation under s 9A of the CA Act that the safety of air navigation is the primary consideration.
(k)The Applicant has demonstrated skills and qualification in civil, military, foreign, and domestic contexts. The Applicant has decades of experience instructing pilots at all skills levels and has the proven ability to instruct students that intend to gain additional qualifications or remedial pilots that require assistance in grasping the concepts.
FIR-Grade 1
(l)CASA contends that the Applicant has not conducted initial flight training, contending that initial flight training is instructing pilots ab initio to obtain a recreational pilot licence and that the Applicant must demonstrate instruction in an aircraft with a maximum take-off weight of 1,500 kilograms.
(m)The Applicant instructed pilots in more complex aircraft. This required a demonstration of a greater skill set to instruct students in faster, more complex aircraft. As a practical and logical matter, these skills can be suitably translated to lighter aircraft. In relation to demonstrated instruction in an aircraft with a maximum take-off weight of 1,500 kilograms, the ADF does not conduct training in non-turbo powered aircraft of that weight.
(n)CASA formally recognises graduates of the same course with a commercial pilot licence or a private pilot licence. Those licences have greater privileges than recreational private licences.
FIR-FIR
(o)CASA in its reasons for decision stated that it recognised Central Flying School (CFS) trained pilots who instruct on the Flight Instructor Course as equivalent.[9]
[9] R3/62.
(p)The Applicant has a qualified flying instructor (QFI) designation from CFS and holds logbook pages detailing FIT flights which were instructor training flights that were conducted for non-instructor qualified pilots for the issue of such approved instructor qualification.
(q)The training the Applicant conducted, and of which he seeks recognition, is training of Instructors on the F/A-18. This was at a course conducted at CFS, for CFS instructors. The instruction the Applicant provided was to qualified pilots who were gaining an instructional qualification, which is recognised by CFS and allows them to instruct on both the F/A-18 and any other operational type. Basic instruction like CCTS and introduction to type instruction is carried out.
FIR-MEAI
(r)CASA in its reasons for decision stated that the Applicant “has not provided evidence to CASA that establishes that the ADF has such a qualification.”[10]
(s)The Applicant has demonstratable experience using multi-engine aeroplane instruction for a variety of pilots. The military qualification is sufficiently equivalent for CASA to apply its discretion.
FIR-MCP
(t)CASA in its reasons for decision stated that the “CASA MCP training endorsement includes training for the Multi-Crew Pilot Licence, Air Transport Pilot Licence and in Multi Crew Cooperation. The ADF does not issue an equivalent qualification”.[11]
(u)The Applicant has provided evidence of his experience on the B200 King Air, which is used by the ADF for multi crew operations. The ADF operates the B200 King Air as a Multi Crew Platform with equivalent requirements of the authorisation, despite that it is certified as a Single Pilot Aircraft.
(v)If CASA applies the necessary discretion, the requirements for this qualification are met.
[10] R3/24, para 55.
[11] R3/22, para 38.
CASA
In relation to the authorisations still in issue, CASA’s SFIC was to the following effect:
(a)
CASA does not challenge the Applicant’s technical competence as a pilot.
His expertise as an Air Force pilot is accepted.
(b)The Applicant is only entitled to be granted endorsements pursuant to CASR 61.285 if CASA, and in this case, the Tribunal is satisfied both of the equivalence of the ADF qualification on which the Applicant relies and of his relevant experience.
(c)A fundamental problem with the application is that it focusses only on the Applicant’s experience being equivalent to the requirements specified for the grant of the various endorsements that he seeks and ignores the question of whether the ADF has given the Applicant an ADF flight crew qualification equivalent to that being sought.
(d)CASR 61.285 provides for recognition of equivalent flight crew qualifications, not equivalent qualifying experience. It does not matter how experienced the Applicant is; if he has not received an equivalent flight crew qualification to the endorsements that he is now seeking, then he is not entitled to the endorsement under CASR 61.285.
(e)CASA’s discretion, such as it is, is limited to the issue of whether the relevant ADF qualification is “at least equivalent”. CASA does not have a discretion to dispense with compliance with the Regulations merely because the Applicant has more, or more complex, experience than the minimum prescribed for the qualification that he now seeks recognition of pursuant to CASR 61.285.
FIR-Grade 1
(f)The issue in relation to this rating is whether the Applicant has an equivalent qualification and experience to that required by CASR Table 61.1235 item 1 in respect of “initial flight training in an aircraft of the specified category [i.e. aeroplane]”.
(g)It is accepted that the Applicant has extensive experience as an instructor in PC-9/A and F/A-18 aircraft. It is also accepted that the Applicant’s ADF experience qualifies him for a Grade 3 Flight Instructor Rating.
(h)The issue here is that the Applicant’s experience as an instructor is analogous to Peter Brock teaching Craig Lowndes how to lap Mount Panorama in a race car. It is not the equivalent of a suburban driving school instructor picking up a 16 or 17-year-old learner driver in a Hyundai i30 after school to practice gear changes and hill-starts. They are very different skill sets for an instructor.
(i)The expression “initial flight training”, as used in CASR Table 61.1235 item 1, is defined in CASR 61.010 as “dual flight conducted for training in the units of competency mentioned in the Part 61 Manual of Standards for the grant of a recreational pilot licence” (emphasis added). It is directed at training new student pilots, not at training ADF pilots who already have the minimum 200 hours of flying experience necessary to graduate to 2FTS.
(j)That this is the proper construction of CASR 61.1235 is confirmed by having regard to what it is that each of a grade 1, grade 2 and grade 3 flying instructor is authorised to do. A grade 3 instructor is authorised to conduct dual flight instruction of new students. However, by way of example, only a grade 1 or 2 instructor is qualified to permit the student to go solo (see CASR 61.1175(5)(a)).
(k)It is understandable that an instructor who is assessing whether a student pilot is ready for their first solo should have a minimum number of hours of experience in instructing students at that level of flying skill. A grade 1 instructor is then required to have even more experience with students at that level, because only a grade 1 instructor can be the head of operations of a Part 141 flying school (see CASR 141.125(1)(a)(i)).
(l)The Applicant may well be a very capable instructor, and with the requisite time working as a grade 3 instructor with student pilots he will almost certainly qualify as a grade 2 and grade 1 instructor. However, he does not presently have the required experience with student pilots at that level.
FIR-FIR
(m)This endorsement is essentially a “train the trainer” rating. That is, a qualification as an instructor to train new instructors. The Applicant has not provided evidence that the ADF has issued him with an equivalent qualification.
(n)There was no evidence that the Applicant had trained non-instructor qualified pilots to become instructors. The Applicant relies on two pages of his logbook to show that he carried out FIT flights at CFS. The Applicant has provided two pages from his logbook to show that he carried out FIT flights at CFS. At most, the logbooks might support one single sortie of 0.8 hours instructing a pilot on 6 February 2013, the day after the Applicant received his QFI qualification. This falls far short of sufficient evidence to conclude that the Applicant was qualified by the ADF to train instructors at the CFS.
FIR-MEAI
(o)The Applicant confuses his qualifying experience for a qualification with the holding of an equivalent ADF flight crew qualification.
(p)There is no doubt that the Applicant is qualified by the ADF to instruct on the F/A-18, which is a multi-engine aircraft. However, he is not qualified by the ADF to instruct on multi-engine aircraft as a class. His qualification is type-specific.
(q)There is no evidence that the ADF even has a general multi-engine class instructor qualification, let alone that the Applicant has been so qualified by the ADF.
(r)There is no question of CASA exercising a discretion on the basis of the Applicant’s experience, the Applicant simply does not meet the requirements of CASR 61.285(a) in respect of this authorisation.
FIR-MCP
(s)The ADF does not issue an equivalent qualification to the FIR-MCP endorsement. The Applicant may have the qualification requirements set out in item 4 of CASR Table 61.1235 to be able to obtain an FIR-MCP endorsement through the ordinary civil application process (subject to completing an approved course of training in multi-crew co-operation – see CASR 61.1250(2)(d)), but he is not entitled to be given such an endorsement pursuant to CASR 61.285 on the basis of his holding of an equivalent ADF qualification.
(t)The Applicant relies on his experience operating a B200 King Air in multi-crew operations. This goes only to whether he meets CASR 61.1250(2)(a). There is no evidence, and the Applicant does not contend, that the ADF has ever qualified him specifically to instruct on multi-crew operations such that he holds an equivalent ADF qualification for the purposes of CASR 61.285.
(u)There is no evidence, and the Applicant does not contend, that he has completed an approved course of training in multi-crew co-operation as required by CASR 61.1250(2)(d), or an ADF equivalent course of training.
THE HEARING AND THE EVIDENCE
The application was heard on 21 and 22 February 2023. Mr J Wheeler appeared for the Applicant and Mr P Ward appeared for CASA. In accordance with directions made at the conclusion of the hearing, written closing submissions were provided by the Applicant on 3 March 2023 and by CASA on 12 March 2023. The Applicant filed responsive submissions to CASA’s closing submissions on 20 March 2023.
The following documents were admitted into evidence:
(a)Statement of Gary John Maxwell dated 7 September 2022 (A1);
(b)Statement of Ray Gregory Simpson dated 7 September 2022 (A2);
(c)Agreement on the promotion of aviation safety between CASA and ADF v 3 dated 2015 (A3);
(d)Flight Crew Licensing Manual - v 16.2 dated August 2022 (A4);
(e)Aide Memoire handed up at hearing (R1);
(f)Copy of Applicant's flight crew licence (R2);
(g)Section 37 T Docs filed 11 October 2021 (R3);
(h)Annexure A to advisory circular 61-09 (learning candidate application) (R4);
(i)Flight Crew Licensing Manual (hard copy) (R5); and
(j)CASA Part 61 Document - Form 61-9TX Recognition and Transfer of Qualifications (hard copy) (R6).
The following witnesses gave evidence at the hearing:
(a)The Applicant;
(b)Gary John Maxwell
(c)Ray Gregory Simpson; and
(d)Dr Anthony Alfred Stanton.
The evidence
The Applicant
The Applicant’s evidence at the hearing was to the following effect. He left the ADF full-time in 2015 and has since worked as a contractor overseas in flying and non-flying roles. Over the last five years the Applicant has spent three years in in the Middle East instructing at various levels with the Saudi Air Force, as well as a stint for 12 months operating the Lear 35 in support of defence contracts as a civilian pilot.
He described the work that he is presently doing in Saudi Arabia as working at a conversion unit with trainees who have completed basic training on the PC-21s, the same aircraft that is used by RAAF. The trainees have at that point completed about 70 hours flying on the Hawk 165, the same aircraft used by the RAAF for the same role, and are then trained to operate on the F15. They end up with 200 hours to 250 hours flying having come from no flying background. This is the usual practice in Saudi Arabia.
The Applicant described the difficulty in instructing Arabic speaking pilots (he does not speak Arabic and English is the trainees’ second language) with little background in flying. Asked to describe the difference between instructing ADF pilots and civilian pilots, the Applicant’s evidence was that in his current instructing role things happened a lot more quickly and there is less time to react and address problems and correct errors. He described it as follows:[12]
APPLICANT: …So that time is compressed and then the added complexity of being second language English is that you need to process any errors and then give corrections to the trainee so that they can listen to it in English, convert it back to Arabic, and then action that obviously close to the ground at high speed, so – yes
MR WHEELER: Okay. So a challenging moment?
APPLICANT: Yes.
[12] Transcript at 43.
The Applicant was taken by his counsel through his relevant experience relating to each of the authorisations sought. In each case, the Applicant’s evidence was to the effect that his experience on ADF aircraft within the parameters and context of ADF training and operation would equip him with the relevant skills at or above the required level to undertake the functions and responsibilities attaching to the civil authorisations. Further, the Applicant’s evidence was that he satisfied the requirements, including flight hours, of CASR 61.1235 for the training endorsements.
Mr Maxwell gave evidence at the hearing and also provided a witness statement.[13] Like the Applicant, Mr Maxwell has had a long and distinguished career in the RAAF starting in Officer Training School pilot’s course in June 1993. He was awarded a Conspicuous Service Medal 2018 and Medal of the Order of Australia (Military Division) in 2003. From 2017 to the present, he has been an instructor with 79SQN in Williamtown on the Hawk 127.
Prior that that role, Mr Maxwell was, amongst other postings, 88SQN Commanding Officer running the Air Warfare Instructor training course (July 2016 - October 2017), 3 SQN Executive Officer operating F/A18s (July 2014 - July 2016) and Fighter Combat Instructor and examiner instrument rating 2OCU RAAF Williamtown (January 2010 - October 2011). Mr Maxwell’s civilian employment includes pilot 747-400 (SO) and B737-800 (FO) (October 2004 - present).
[13] A1.
Mr Maxwell’s witness statement was to the following effect:
(a)The Applicant would not compromise the safety of civil air navigation were his Defence credentials to be recognised by CASA.
(b)The particular experience that the Applicant has demonstrated from the ADF, as well as the significant instructional experience he has privately pursued in his post - ADF employment, amply demonstrate that he would meet the regulatory standards for him to be issued with the authorisations he has sought.
(c)The Applicant’s flight training experience is at least equivalent to the civil standard because the platforms on which the Applicant has instructed are more complex with higher performance which, therefore, require particularly adept instruction to maximise safety versus training benefits. Any lack of time instructing students is more than offset by the number of hours instructing in the mission sets described by Mr Maxwell.
(d)Inflight instruction is extremely important, but it is improved and focused by pre-flight tutorials, mass briefs, before flight briefs, and most importantly debriefs. These disciplines are a real strength of RAAF flying and particularly fighter flying. This allows significant student improvement and progression in a healthy learning environment.
Mr Simpson gave evidence at the hearing and provided a witness statement.[14] His RAAF career, which also started in 1993 with the Officer Training School pilots’ course, has included many of the command and instructor roles held by Mr Maxwell as summarised in [35] above. He also was awarded a Conspicuous Service Medal in 2018 and a Medal of the Order of Australia (Military Division) in 2003. His civil flying career (October 2004 – present) includes being a pilot on B747-400(SO) and B737- 800(FO). Mr Simpson’s evidence was to the same effect as that of Mr Maxwell as set out in [36] above
[14] A2.
Dr Stanton provided a witness statement to the following effect:[15]
[15] R7.
(a)He is currently employed as the Branch Manager, Sport and Recreation Aviation within the Stakeholder Engagement Division of CASA in which he has been employed since 2012.
(b)In his current role he is responsible for the oversight of Approved Self-administering Organisations and sport and recreational aviation activities. Previously he held the role of Senior Manager, Flight Standards Branch where he had responsibility for (amongst other things) the Australian civil flight crew licencing scheme established under Part 61 of the CASR.
(c)He holds various flight crew licences and qualifications. He has, amongst other qualifications, held an FIR since 2005 and has accumulated approximately 4,000 flight hours training to pilots towards the issue of a range of civilian flight crew licences rating and endorsements, including in multi-engine aircraft and for the issue of FIR and Instrument Ratings.
(d)He has represented Australia at the International Civil Aviation Organization (ICAO), as a member of the ICAO Competency-Based Training and Assessment Taskforce. As a member of that taskforce, he provided subject matter expertise in relation to the development of international aviation standards in relation to pilot training and pilot assessment including that of flight instructors.
(e)The issue of flight crew qualifications under Part 61 is generally structured around ensuring that applicants for those authorisations have demonstrated that they have the ability to safely exercise the privileges by:
(i)Undergoing a course of flight training in accordance with Part 61 MOS;
(ii)Passing theoretical knowledge exams;
(iii)Accruing a specified amount of flight time; and
(iv)Passing a flight test conducted by a Part 61 flight examiner.
(f)Regulation 11.055(1A) provides that CASA may only grant an authorisation if, amongst other things, the person meets the criteria specified in the CASR.
(g)Relevantly, CASR 61.285(c) specifies that member or former member of the ADF must meet the aeronautical experience requirements for the licence, rating, or endorsement. In relation to the Grade 1 training endorsement, the Applicant has not provided evidence of meeting the kind of aeronautical experience which is required by column 3 of Table 61.1235.
(h)CASR 61.285(a) requires the member or former member of the ADF to provide evidence of holding an ADF qualification that authorised the member to perform activities that are the same (or substantially similar) as the privileges of the requested under Part 61 of the CASR in the expectation that the ADF will have subjected the person to training and examination appropriate to the conduct of those activities.
(i)CASR 61.285(c) requires that the member of former member of the ADF must meet the aeronautical experience requirements for the Part 61 licence, rating, or endorsement.
(j)Each of the provisions in regulation 61.285 of the CASR operate in a cumulative manner.
(k)Having reviewed the applications for the authorisations, the Applicant’s submissions and the statements of Mr Maxwell and Mr Simpson, he understands the Applicant’s argument to be that:
(i)The ADF generally have higher performance aircraft than civil aircraft and therefore operating in these aircraft require more adept instruction to maximise safety versus training benefits;
(ii)The Applicant’s flight training experience within the ADF has involved significant dual training experience, and that simpler instruction is only a derivative of complex training;
(iii)The value of advanced instructional experience (i.e., 2FTS), exceeds that of basic flying instructional ability and techniques.
(l)The argument is not valid because the proposition fails to recognise the Part 61 flight crew licencing model for pilot instructors, particularly the safety underpinnings of the graduated experience requirements for progressing through the different levels of training endorsement.
(m)The proposition put forward of general instructional experience and instructional competency, within the context of more complex aircraft, is one that is properly managed through a flight crew licence through a Part 141 or Part 142 operator, that is through a flight training school instruction and examination.
The Parties’ Closing Submissions
The Applicant
The Tribunal, standing in CASA’s shoes, is to determine whether the Applicant’s ADF qualifications and substantive experience are equivalent or at least equivalent to the civilian ratings and endorsements he seeks to add to his existing Commercial and Air Transport Pilot Licences.
CASR 61.285(a), at issue in this proceeding, has no relevant connection with Annex 1 to the Chicago Convention,[16] nor Australia’s broader obligations in respect of flight crew licensing, and is strictly irrelevant to the Tribunal’s consideration of the comparison of ADF and civil flight crew qualifications.
[16] Convention on International Civil Aviation, opened for signature 7 December 1944 (entered into force 4 April 1947).
The CASR, supported by the MOS, gives guidance for the skills, competencies and a guide to understanding the actual demonstrations of aviation proficiency an applicant must show in their ADF qualifications for CASA to exercise its discretion positively under CASR 61.285.
The Applicant followed CASA’s administrative process in form and substance. He submitted Form 61-1ADF to CASA which was signed by ADF Wing Commander Ashworth, certifying that the Applicant met the CASA minimum requirements for the issues of the nominated authorisations.[17] An ADF Commanding Officer’s view as to the equivalency of qualifications to civil cannot be incorrect or irrelevant when CASA’s own forms appear to make this an essential consideration for CASA’s assessment.
[17] T12.
The value of the Flight Crew Licence is not diminished nor discredited by finding in favour of the Applicant. Chapter 14 of the CASA Flight Crew Licencing Manual Version 12.2 is intended to assist decision makers as an internal administrative guide. It is not legislative in character and thus should not rigidly be applied. CASA rigidly applied Chapter 14 of the FCL Manual and did not apply the permitted and appropriate discretion, endowed by the legislation, when considering this application. The FCL Manual is a guide only. The failure to find an ADF qualification is no bar to it being accepted or assessed as an “equivalent” qualification because the assessment role nevertheless remains with CASA.
Ordinary understanding or construction of “equivalence” applied to the Applicant would result in his receiving the authorisations sought. Civil and military systems are different by design. The instruction in a military context serves a different purpose. Instructors in the military domain educate pilots on operating faster, more complex aircraft in more dynamic environments than the civilian flight environment for purposes that ultimately serve another goal. Qualification of military instructors is more advanced and specialised than the requirements for the equivalent civil authorisation as the flight instruction given must immediately be practically implemented and failure to reach competency is generally more serious in the ADF situation.
Equivalent authorisations are not a determination of qualification equivalence, not only because it is unclear how the qualifications “map” as between civil and military domains, but instead should focus on the quality and competencies demonstrated within the Applicant’s application that would activate CASA’s discretion.
The evidence of substantive equivalence of each authorisation from the witnesses for the Applicant lends itself to a decision to grant the ratings and endorsements.
In relation to the Grade 1 Instructor rating, CASA’s focus on the civil requirements set out in CASR 61.1235 item 1, allows no scope to view CASR 61.285(a) as requiring anything other than a “one for one” comparison. This cannot work where there is no such comparability between the civil and the military qualifications. Mr Maxwell’s evidence was that he obtained his Grade 1 Civil Instructor rating at Basic Flying Training School (BFTS) which was, at the time, a joint ADF and civil recognised training organisation. This points to an equivalency that existed prior to the current Part 61 CASR rules and was accepted; it should still be so today particularly noting that joint heritage.
Mr Maxwell’s description of the qualitative aspects of ADF qualification comparted with civil instruction and qualification shows that “…the military has got a lot more competency-based rigor in the way that [it] assess capability or standards.” Mr Maxwell’s evidence was that:
Within the ADF system you have various categories, as I’ve mentioned before. Once you’ve achieved those categories, those categories give you various privileges. So in the case of [the Applicant] and, in fact, myself, we were category B qualified flying instructors, and for that you need to demonstrate ADF-mapped competencies and your ability to interact with students or deliver an instructional outcome.
According to the Applicant, the method of instruction is no less rigorous than the Column 3 requirements when compared against the activities authorised as set out in Column 2 of CASR Table 61.1236.
In relation to the FIR-FIR (training the trainer) endorsement, Mr Simpson’s evidence was “any instructor can perform in that environment and is successful and effective, it only adds value to their, you know, safety of flight and contribution to aviation as a whole”. This is an example of what “at least equivalent” can look like.
The Applicant has demonstrated flight instructor instruction skills in his logbook submissions, having instructed on the Fighter Combat Instructor Course and, in particular, during the Flight Instruction Training phase teaching basic instructional technique to new instructors on a course endorsed by the CFS.
The CASA scheme, designed as it is to facilitate training, qualification and endorsement for civil pilots, is enumerated in a very structured way in Part 61 of the CASR. However, the competencies behind what a FIR-FIR can do are the same and highlighted by the witnesses’ evidence. Insofar as experience in training “ab initio” trainees is required, this was obtained through transition of trainees from BFTS to 2FTS. Mr Maxwell’s evidence was that instructors at 2FTS and BFTS are, for all intents and purposes, interchangeable because the instructor training sense “is established around the ab initio baseline”, meaning instructors are always geared at training students as if they have no prior knowledge, as a means to advance pilots through what he described as an “evolution” of their progression as ADF aviators.
In relation to the Flight Instructor Rating Multi-crew pilot training endorsement (FIR-MCP), even though the ADF may not have a specific qualification described by the same name as the civilian endorsement, the Applicant’s B200 King Air experience as disclosed in his logbooks and QFI qualification should suffice for the purposes of this endorsement because baseline QFI training actually allows instructors to conduct this (and any relevant flight training) with the only hindrance being an initial brief conversion as to type.
Mr Maxwell’s evidence was that the peculiarity of ADF training is that instructors are typically “agnostic of platform” and thus the Applicant’s QFI status, as well as his flight experience in a multicrew environment, not only on the B200 King Air, and on other multi crew operations, more than adequately prepared him to instruct in multi crew cooperation, no matter the details of the instruments prescribing such instruction.
In relation to the Flight Instructor Rating multi-engine class instructor training endorsement (FIR-MEAI), the submissions above in respect of the form and qualitative aspects of the agnostic, ab initio baseline-centric, and competence-based training of the ADF flying training and instructional system are repeated and relied on.
In relation to the interpretation of CASR 61.285(a) an interpretation setting apart the term “qualification” from the words “at least equivalent” must be avoided. The term “qualification” is devoid of meaning and relevance in this situation in the scheme if not interpreted in light of a reference to its substance. Dr Stanton agreed it is the confidence in the robust training behind the qualification that CASA is concerned with – and admitted that that was not always neatly packaged up onto qualifications with explicit titles.
CASA
Section 3A of the Air Navigation Act 1920 (Cth) approves the ratification of the Chicago Convention at schedule 1 to that Act. The Chicago Convention established the ICAO, which provides the international framework for cooperation on regulation of air navigation.[18]
[18] See above n 16.
The current volume of ICAO standards is the 14th edition of ICAO Annexure 1 to the convention on international civil aviation, which was issued in July 2022. The relevant standards relating to instruction and to the flight instructor rating endorsements that are sought in this proceeding are in section 2.8 of the ICAO standards. Paragraph 2.8.1.2 provides that:
The applicant shall have demonstrated, in the category and class of
aircraft for which instructor privileges are sought, the ability to
instruct in those areas in which flight instruction is to be given …
Paragraph 2.8.1.4 of the standard further provides that:
The applicant shall, under the supervision of a flight instructor
accepted by the Licensing Authority for that purpose … have practiced
instructional techniques in those flight manoeuvres and procedures in
which is intended to provide flight instruction.
It is by practising those instructional techniques under supervision, and demonstrating the ability to instruct in those areas, that a flight instructor earns a qualification.
Section 11 of the CA Act requires CASA (and, therefore, the Tribunal) to perform its functions in a manner consistent with the obligations of Australia under the Chicago Convention. Those obligations include implementing the ICAO standards. That is, in exercising the power under CASR 61.150 to grant civilian authorisations based on deemed compliance by reason of holding ADF qualifications pursuant to CASR 61.285, the Tribunal must take into account the fact that the endorsements being sought are a part of a standardised international system under which holders of the endorsements sought are required to have trained in, and demonstrated, the ability to instruct in the privileges of the endorsements sought.
The provision that the applicant is “taken to meet the requirements under this Part for the grant of [an] endorsement” is referring to the requirements in column 3 of table CASR 61.1235, with the exception of the aeronautical experience requirements which are separately specified in subregulation (c).
Subregulation (a) contains a requirement that the person holds or has held “a flight crew qualification granted by the ADF”. A specific ADF qualification must be identified before one undertakes any consideration of “equivalence”. It is the qualification that has to be equivalent. The reference to a “qualification” should not be misconstrued as a reference to “experience”.
It is for CASA (and therefore for the Tribunal) to determine whether the ADF qualification is “at least equivalent” to the civilian endorsement sought. Opinions expressed by ADF personnel as to equivalence are irrelevant. It is important also to note that the comparison is to the civilian qualification itself – it is not a comparison to the standards of experience, training and airmanship required to obtain that civilian qualification.
The term “equivalent” is defined in CASR 61.010 for the purposes of CASR 61.275, dealing with recognition of foreign civilian qualifications, where the same term “at least equivalent” is used, but it is not defined for the purposes of CASR 61.285. While that definition cannot be used in the context of CASR 61.285, it is helpful for drawing attention to a comparison of the privileges of each of the civilian qualification sought and the ADF qualification said to be “equivalent”.
A comparison of those privileges is something that is properly within the powers of both CASA, and the Tribunal, to undertake. In contrast, the Applicant’s case would have CASA, and the Tribunal, undertaking an assessment of whether the Applicant’s experience gained in ADF flying operations is “equivalent” to the civilian qualification in the sense that the Applicant has shown by that experience that he is capable of safely exercising the privileges of the civilian qualification. That is not truly a system of recognition of ADF qualifications; rather, what the applicant is asking the Tribunal to do is to step into the role of an examiner and to undertake an assessment of the Applicant’s personal suitability to hold the civilian qualifications sought.
In relation to the Flight Instructor Rating Grade 1 training endorsement (FIR-G1A), the Applicant seeks to satisfy the requirements or this endorsement by relying on his qualifications as an instructor in the ADF on the F/A-18 and the PC-9A, and his experience instructing ADF pilots at 2 FTS. Those instructor qualifications did not, of themselves, permit the Applicant to instruct ab initio pilots entering the ADF.
The requirements for issue of a Grade 1 training endorsement are set out in table CASR 61.1235, column 3, namely that the Applicant has:
(a)a CPL or ATPL (this is satisfied);
(b)a grade 2 training endorsement; and
(c)at least 500 hours of flight time conducting initial flight training.
The Applicant no longer seeks a grade 2 training endorsement. The Applicant having now abandoned that application, it is not now open to this Tribunal to grant him a grade 1 endorsement without satisfying the requirement of having a grade 2 endorsement.
Further, the Applicant does not meet the aeronautical experience requirement of having 500 hours of flight time conducting initial flight training. “Initial flight training” is defined in CASR 61.010 as follows:
… dual flight conducted for training in the units of competency
mentioned in the Part 61 Manual of Standards for the grant of a
recreational pilot licence.
This requirement is not one that can be satisfied by an ADF qualification, because it is an aeronautical experience requirement referred to in sub-regulation (c), not an ADF qualification equivalence requirement of sub-regulation (a). The Applicant has not met this aeronautical experience requirement in the terms expressed in table 61.1235. Even if a comparison of his ADF experience was permitted in seeking to satisfy this requirement, the evidence shows that the Applicant has no equivalent experience. He has never instructed ab initio student pilots. He has never had the responsibility of assessing when an ab initio student pilot is ready for their first solo flight.
In relation to the Flight Instructor Rating Multi-crew pilot training endorsement (FIR-MCP), the Applicant relies on his qualifications as in instructor on the F/A-18 and as a pilot on the B200 King Air. However, the Applicant has no qualifications to instruct on the B200 King Air. The ADF does not have a specific multi-crew pilot training qualification that extends beyond training on a specific aircraft type.
It is a requirement of CASR 61.1250(2)(d) that the Applicant has completed an approved course of training in multi‑crew co‑operation. The approved course of training in multi-crew co-operation requires training in a prescribed type of flight simulation training device pursuant to the prescribed qualification standards for FSTD (MCC training – aeroplane) Instrument 2015 (Edition 1). The Applicant has never completed such training.
The Applicant is seeking to be approved to conduct a course of training that he has never himself undertaken on a simulator that he has never seen. The applicant has no relevant ADF qualification that might be regarded as being in any way equivalent to the endorsement sought.
In relation to the Flight Instructor Rating Instructor rating training endorsement (FIR-FIR), the Applicant relies for this endorsement on his qualification as a Category B instructor on the F/A-18 and his experience in conducting a small number of instructional sorties in the first weeks of a six-month course of instruction for new fighter instructors at 2OCU.
The Applicant took no part in that training after the first weeks, and in particular took no part in the assessment of the trainees beyond debriefing on the sorties undertaken.
There are no specific requirements for this endorsement set out in table CASR 61.1235, item 14 that are in dispute. The sole question is whether the Applicant has an ADF qualification that is “at least equivalent” to the endorsement sought. On the Applicant’s own evidence, responsibility for conducting instructor training and assessment within the ADF was with instructors posted to CFS. The Applicant was never posted to CFS as an instructor.
The ADF does not have a specific qualification for instructors who are to instruct other instructors. However, the ADF does have a posting for instructors to CFS to carry out such training but the Applicant was not so posted. The Applicant was seconded to 2OCU for a brief period in early 2013 to assist with early sorties of an instructor training course, however, the Applicant was not otherwise involved with instructor training or assessment whilst in the ADF.
In relation to Flight Instructor Rating Multi-engine aeroplane class rating instructor training endorsement (FIR-MEAI), the Applicant relies on his ADF qualification as an instructor on the F/A-18, which is a multi-engine aircraft. The endorsement sought, however, is one that permits flight training for a class rating training endorsement. That is, it would permit the Applicant to train other instructors to obtain their own multi-engine class rating training endorsement, so that those instructors in turn can then instruct pilots to obtain multi-engine class ratings.
The evidence was clear that the ADF does not have a qualification equivalent to the multi-engine class rating. All ADF training, and all of the Applicant’s qualifications, are type-specific, not class-specific. Further, even to the extent that the Applicant has multi-engine experience, his experience in instructing instructors is limited to the F/A-18 on the few sorties in early 2013. The Applicant and his witnesses accepted that general issues relating to asymmetry in multi-engine aircraft are of limited relevance to the F/A-18. In short, the Applicant is seeking to be permitted to train other instructors to instruct pilots on a class rating that the Applicant himself did not hold in the ADF, and on which he has never previously instructed ADF pilots, let alone ADF instructors.
A further impediment to this application is that the Applicant has neither a grade 1 training endorsement nor a type-rating training endorsement for a type of multi-engine aircraft, as required by table CASR 61.1235 item 15 column 3.
Applicant’s reply
Annexes to the Chicago Convention are not part of the convention and adherence by a nation state to the Convention does not entail adherence to the annexes. Compliance with CASA’s international obligations does not entail every regulatory decision being tied to an annex standard obligation or recommended practice.
Even if CASA is right that granting the Applicant the authorisations that he seeks (i.e. largely small extensions to his existing Flight Instructor Rating) would somehow be inconsistent with Australia’s obligations under the Chicago Convention, the Chicago Convention itself includes an important support for the sovereignty of a state like Australia to permit such “anomalies” or “exceptions” to occur with the only proviso being that the pilot’s licence “have endorsed on or attached to [it] a complete enumeration of the particulars in which he does not satisfy such conditions”. The Chicago Convention Article 1 provides that “[t]he contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory”.
CASR 61.285 is a non-ICAO, non-Annex, non-Chicago Convention sourced domestic legislative apparatus for recognition of a military qualification as equivalent or at least equivalent to the civilian qualification as set out in Part 61 CASR, that has no connection with the ICAO Annexes. In any event, the Applicant is not seeking any flight authorisation from CASA that involves nor even seeks to instruct on matters involving nor affecting international flight. The Applicant merely seeks to upgrade his Grade 3 Instructor Training Endorsement to Grade 1 and to add three endorsements to his (already held) Flight Instructor Rating (namely allowing privileges of instructing other instructors, instructing on multicrew cooperation, and instructing on multi engine aircraft).
CASA misapprehends the Applicant’s views of the terms “qualifications” and “experience” and therefore his arguments as to the same. The Applicant’s argument is that his ADF qualifications are more than equivalent to civil qualifications - not that his experience meets the 61.285 dictate. ADF qualifications do not easily “map” to civil analogues, much of the evidence of what his qualifications entail described the privileges he displayed in ADF flying and for all intents and purposes sounded like explanations of his “experience” (which they were as well). The explanations by the witnesses should properly be understood to be explanations of the ADF qualifications to enable the Tribunal to functionally compare them with their closest civil analogues.
In relation to Flight Instructor Rating Grade 1, what is to be assessed is whether the Applicant’s ADF qualification is “at least equivalent”. It is not relevant that the Applicant does not have a grade 2 training endorsement. The reason for the Applicant no longer seeking the grade 2 endorsement is that the Applicant is entitled to the Grade 1 training endorsement and, in receiving that, obviously also qualifies for the Grade 2.
The Applicant has demonstrated at least 500 hours of flight time, without agreeing the explicit hour requirement is necessary to be demonstrated – he repeats that the civil requirements are met if the ADF qualification is decided to be “at least equivalent”. Those hours included time as a “standards flight instructor” during the last 12 months of time at 2FTS. This role required mentoring and assisting junior instructors in their development and to prepare and train them for upgrades to CAT C and CAT B instructors.
The words “ab initio” are not used in the Regulation – in fact the reference in the Regulation aligns with the Applicant’s interpretation as it means “dual flight in the units of competency for a Part 61 Recreational Pilot Licence”. Such units are laid out in the Part 61 Manual of Standards and these units of competency are taught at 2FTS. The experience of the person being instructed is irrelevant.
In relation to the Flight Instructor Rating Multi-crew pilot training endorsement, in response to CASA’s claim that the Applicant does not have a qualification to instruct on the B200 Air King, the fact of holding a QFI is sufficient for that role, and so it is the basis upon which the civil analogue is sought in this proceeding. In addition, the requirements of Column 3 only require a CPL or ATPL and at least 100 hours of aeronautical experience in Multi-Crew operations. The Applicant has more than 1,000 hours in multi-crew operations on the B200 Air King, more than 800 hours in multi-crew operations in the F/A-18 and more than 200 hours in multi-crew operations and instruction in the F-15SA.
CASA’s repeated reliance on the need to satisfy the requirements of the items in CASR 61.1235 is misplaced. They are not relevant except as being the comparator with which CASA and the Tribunal must reference the privileges conferred by the ADF qualification. In and of themselves the CASR 61.1235 requirements merely set out how civil pilots can qualify for the same privileges – not how CASR 61.285 analyses are to be treated.
In relation to the Flight Instructor Rating Instructor rating training endorsement, CASA’s claim that the Applicant took no part in the assessment of the trainees beyond debriefing on the sorties undertaken is incorrect. Training and assessment is an ongoing process in the ADF and it cannot so easily be discretely “chunked” as in the highly regulated, hours based, civil equivalents for the flying and certainly is not solely focused on flying, which explains the Applicant’s temporal involvement. If there is no equivalency found here, it is simply the result of failing to appreciate that there are no mapped analogues for every civil qualification within the ADF.
In relation to Flight Instructor Rating Multi-engine aeroplane class rating instructor training endorsement, it is because the ADF qualifications are type specific, and the Applicant has experience on so many types and situations, that makes him qualified to be awarded the privilege of this class rating training endorsement.
CONSIDERATION
It is unfortunate that there is no specific judicial consideration of the approach to be taken in assessing whether ADF flight crew qualifications are at least equivalent to the civilian authorisations. Some guidance, however, can be found in the recent Federal Court Full Court judgment in Victorian Building Authority v Cau[2023] FCAFC 120. In Cau the Full Court was considering Part 3 of the Mutual Recognition Act 1992 (Cth) (MR Act). The Full Court described at [1] the operation of the MR Act as follows:
Part 3 of the [MR Act] provides a mechanism by which a person who is registered for an occupation in one State is entitled to registration in the equivalent occupation in another State after notifying the local registration authority of the other State. The local registration authority may refuse registration in the other State if the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
Section 29(1) of the MR Act provides:
An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).
At [6] of Cau, in describing the approach taken by Colvin J at first instance,[19] an approach with which the Full Court agreed, the Full Court said:
The primary judge found (all emphasis in original) that words used in the phrase "'activities authorised to be carried out under each registration' ... direct attention to the activities that comprise the nature and extent of the occupation being registered" (at J [11]). He explained that the "activities" to which reference is made in that phrase are not "activities that may be authorised by reason of the fact of registration or in consequence of registration" but "activities that can be carried out under the registration of the occupation. His Honour held that "the activities being carried out under the registration are those professional activities that form part of the occupation" (at J [12]). The distinction his Honour drew, then, was between s 29(1) as requiring equivalence in specified functions which are authorised to be performed by registered persons, for example the statutory function of issuing building permits, and s 29(1) as requiring equivalence in the broader occupational activities that a person may undertake if registered.
[19] Cau v Victorian Building Authority [2022] FCA 45.
At [8] and [9], the Full Court summarised Colvin J’s reasoning in concluding that the Tribunal had erred in the approach that it took, as follows:
The primary judge summarised the Tribunal's approach to the application of s 29(1) of the [MR Act] at J [69]-[71]. His Honour observed that the Tribunal compared "functions in the relevant legislation that are authorised by the relevant registrations" (at J [69]). His Honour observed that "no part of the Tribunal's reasons involved a consideration of the activities that formed part of the occupation of a building surveyor or the nature and extent of those occupational activities which a registered building surveyor could undertake" (at J [70]). Rather, the Tribunal considered the "activities to be carried out under each registration" referred to the statutory authorities that could be exercised by a registered building surveyor under building legislation in each of the two States (at J [71]). In other words, "[i]t treated those words as referring to the authority conferred upon registered building surveyors by the scheme that regulated building activities rather than upon the activities of the occupation for which those persons were registered" (at J [71]). Consequently, the Tribunal failed to consider whether there was equivalence as to the "activities that were covered by the registration as a building surveyor" (at J [75]).
The primary judge concluded that the Tribunal's approach to the application of s 29(1) of the Act involved an error of law. He characterised that error (at J [84]) in the following manner.
The Tribunal's error was to misconceive the nature of its task under the legislation. In consequence, it inquired into the wrong factual matters. Instead of focussing on the activities that formed the extent of the occupation that was the subject of the registration as a building surveyor in each of the two States (being the activities conducted under the registration) it considered the consequential statutory authority that might be exercised by a person so registered (being activities that could be conducted under the building legislation by reason of the registration). In so doing, it committed a legal error.
What the Full Court in Cau, and Colvin J at first instance, emphasised was the need to undertake the task as prescribed by the legislation. The error made by the Tribunal in Cau was to examine the equivalence, or lack thereof, in the activities that registration in each of the States authorised. What the MR Act required was a consideration of the equivalence of the occupations, that is the activities of the registered practitioners rather than consideration of the activities authorised by the registration under the law of each State. The Tribunal had, as Colvin J put it at first instance at [84]) “misconceive[d] the nature of its task under the legislation’ and “[i]n consequence … inquired into the wrong factual matters”.
In the present case, CASR 61.285 directs consideration of whether the Applicant “holds, or has held, a flight crew qualification granted by the Australian Defence Force that CASA is satisfied is at least equivalent to the licence, rating or endorsement”. That direction has two primary components:
(a)whether the ADF has granted a qualification; and,
(b)whether the qualification granted by the ADF is equivalent to the civil authorisation sought.
What CASR 61.285 is directing is a consideration of the existence of and then the characteristics and nature of the qualification issued by the ADF. It is not directing an enquiry into the skill, character, experience, capabilities, aptitude or suitability of an applicant for the civil flight crew endorsement sought. That is not surprising when one considers the context and purpose of CASR 61.285 which is the recognition of ADF qualifications as an alternative means of gaining civil flight crew authorisations to the “standard” civil aviation training, examination and endorsement regime set out in CASR Part 61B.1-6.[20] It is the nature and characteristics of the ADF qualification and, to a lesser extent, the process or regime resulting in the grant of the ADF qualification that is to be assessed for equivalence. That is a different consideration to whether a pilot holding an ADF qualification is as technically or functionally capable or better than a pilot who has qualified to hold a particular authorisation through CASR Part 61B.1-6.
[20] Described by Dr Stanton in his statement; see para [38(e)] above.
It is therefore not relevant to the consideration required by CASR 61.285, guided by the principles set out in Cau, to consider whether the Applicant is as good or better than a pilot who has qualified to hold the authorisations sought through training, examination and progression of endorsement under the civil regime. That may well be the case, however, that is not the enquiry directed by the legislation. The assumption underlying CASR 61.285 (as with all mutual qualification recognition regimes) is that someone granted an equivalent ADF authorisation would be at least as good a pilot in the specific discipline the subject of the endorsement as someone who has gone through training, examination and progression of endorsement under the civil regime.
Much of the evidence presented by the Applicant, including his own evidence and that of Mr Maxwell and Mr Simpson, went to the Applicant’s qualities and expertise as a highly trained and skilled ADF pilot. I have no doubt that that is the case and CASA agrees that that is the case. That, however, is not the issue to be determined. It may also be that because of the Applicant’s vast experience and training that he would be able discharge the functions or exercise privileges attaching to or associated with the authorisations that he seeks. Again, however, that is not the enquiry directed by CASR 61.285. That enquiry is as to the equivalence of the qualification granted by the ADF.
The difficulty that the Applicant has in the present case is that while one or more of the ADF qualifications may indicate that the Applicant has in the ADF’s view achieved a standard that would enable him to undertake a certain role in the ADF, there is not sufficient equivalence between the ADF qualification and the civil endorsement sought. In making that observation I am mindful, as the Applicant has pointed out, that in a lot of respects the purpose and nature of ADF training and therefore the qualifications issued by the ADF, are for and particular to military purposes (see [26(g)] above). That is why the test is expressed in terms of equivalence, not complete parity. In some cases where there is sufficient equivalence CASA has either prescribed the particular ADF qualification in Table 14.12 of the FCL Manual or has granted authorisations on a case-by-case basis (see [5] above).
Understandably, and rightly, the Applicant has sought to identify the particular ADF qualifications that reflect or approximate to each of the civil authorisations sought. In each case, however, I am not satisfied on the evidence presented, that they approximate or align sufficiently closely to the civil authorisations to be considered “at least equivalent”, the standard required by CASR 61.285.
In relation to the Flight Instructor Rating – Grade 1 (FIR-G1A) training endorsement sought by the Applicant, I agree with CASA’s submission that there is a lack of equivalence in the ADF qualification held by the Applicant and the privileges to be exercised under the FIR-G1A endorsement when it comes to instructing beginner or ab initio pilots. In that regard the Applicant is relying on his qualifications as an instructor in the ADF on the F/A-18 and the PC-9A, and his experience instructing ADF pilots at 2FTS. As noted by CASA, those ADF qualifications do not, of themselves, permit the Applicant to instruct ab initio pilots entering the ADF. Whether the Applicant would have the skills to do that is not the issue. The issue is whether he holds an ADF qualification with sufficient equivalence to entitle the Applicant to the issue of the civil endorsement.
The fact that the Applicant is an enormously experienced pilot on far more sophisticated aircraft is, firstly not to the point but, secondly in any event, is not a guarantee that the Applicant would be suited to or equipped for teaching beginner pilots. While counsel used the analogy of the Applicant’s instructor experience being akin to Peter Brock teaching Craig Lowndes to drive a lap at Bathurst, perhaps a better analogy would be a professor of mathematics teaching arithmetic to primary school children. The professor would certainly have the technical knowledge of the subject matter, mathematics, but may be lacking the training or experience in teaching those with effectively no knowledge of mathematics. While the Applicant has instructed at 2FTS, those he was instructing already had flight training. The evidence did not establish any equivalence in the Applicant’s ADF qualifications in that regard.
In relation to the multi-crew (FIR-MCP) endorsement, CASA points out that, irrespective of the Applicant’s experience, the Applicant does not have any relevant multi-crew qualification and relies on his QFI and his experience as an instructor on the F/A-18 and a pilot on the B200 King Air which the ADF operates as a multi-crew platform as being sufficient.
The Applicant does not have a qualification to instruct on the King Air. The QFI is, however, of a general nature not specific to multi-crew operation. The Applicant does not hold an ADF qualification which could be considered to have equivalence to the civil endorsement sought.
In relation to the Flight Instructor Rating Instructor rating training endorsement (FIR-FIR), the ADF does not have an equivalent qualification. While such training is undertaken by ADF in CFS, the was not posted to CFS as an instructor. Again, while the Applicant’s experience may well mean that he could instruct instructors, that is not the test under CASR 61.285. The Applicant simply does not hold an ADF qualification that is sufficiently similar to the authorisation sought to be considered as at least equivalent to the authorisation sought.
The Flight Instructor Rating Multi-engine aeroplane class rating instructor training endorsement (FIR-MEAI) is an endorsement for flight training for a class rating training.
The Applicant relies on his qualification as an instructor on the F/A-18 which is a multi-engine aircraft. That ADF instructor’s qualification, however, is not a qualification to train instructors which is the endorsement sought. Further, the ADF does not have a qualification equivalent to the multi-engine class rating. The ADF qualifications are type-specific, not class-specific. Again, there is no equivalence between the ADF qualification relied on and the endorsement sought.
DECISION
In the case of each of the authorisations sought by the Applicant, for the reasons set out above, I am not satisfied that the ADF qualification held by the Applicant is at least equivalent to the authorisation sought as required by CASR 61.285 for the Applicant to be taken to meet the requirements for the grant of the authorisations. Accordingly, the decision made by the Respondent on 29 April 2020 insofar as it relates to the four authorisations sought, is affirmed.
I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
............[Sgd]...........................................................
Associate
Dated: 18 August 2023
Date of hearing: 21-22 February 2023 Solicitors for the Applicant: Mr J Wheeler, International Aerospace Law & Policy Group Counsel for the Respondent: Mr P Ward, Francis Burt Chambers
Solicitors for the Respondent: Ms T Canny, Civil Aviation Safety Authority
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