Confidential and Civil Aviation Safety Authority
[2013] AATA 927
[2013] AATA 927
Division GENERAL ADMINISTRATIVE DIVISION File No
2013/3959
Re
Confidential
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 20 December 2013 Place Melbourne The Tribunal
affirms the decision made by the Civil Aviation Safety Authority on
8 August 2013.
........[sgd Egon Fice]................................................................
Egon Fice, Senior Member
CIVIL AVIATION – suspension of licences – fit and proper person – cheating by examination candidates – cyber exam – cheat sheets – the construction of Civil Aviation Regulation 298A – Air Transport (Aeroplane) Pilot Licence Theory Examination – giving information about questions contained in the examination paper – unfair advantage in an examination
Legislation
Acts Interpretation Act 1901 (Cth) s 15AA
Civil Aviation Act 1988 (Cth) s 98
Legislative Instruments Act 2003 (Cth) s 13
Migration Act 1958 (Cth)
Veterans’ Entitlements Act 1986 (Cth) s 120
Regulations
Civil Aviation Regulations 1988 (Cth) regs 1.165, 5.09, 5.165, 269, 297A, 298A, 298D
Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 336
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Jones v Dunkel (1959) 101 CLR 298
Mann v Carnell (1999) 201 CLR 1
Marsh and Civil Aviation Safety Authority [2013] AATA 729
Minister for Immigration and Ethnic Affairs v Pochi (1981) 4 ALD 163
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Oasis Flight Training Pty Ltd and Civil Aviation Safety Authority [2013] AATA 600
Repatriation Commission v Smith (MJ) (1987) 74 ALR 537
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sullivan v Civil Aviation Safety Authority [2013] FCA 1362
Tisdall v Webber (2011) 193 FCR 260
Secondary Materials
Boeing 727 Performance and Operating Handbook (Abbreviated)
CASA’s Examination Information Book (Version 2.4 – September 2013)
Statutory Rules 1994 No. 260 (Cth), Civil Aviation Regulations 1988 (Cth) (Amendment)
(21 July 1994)Statutory Rules 1994 No. 260 (Cth), Civil Aviation Regulations 1988 (Cth) (Amendment) Explanatory Statement
The Australian Concise Oxford Dictionary (3rd ed, 2001)
REASONS FOR DECISION
Egon Fice, Senior Member
20 December 2013
On 20 February 2013 a delegate of the Civil Aviation Safety Authority (CASA) wrote to the applicant giving him notice that in accordance with Regulation 269(1) of the Civil Aviation Regulations 1988 (CAR), he had reason to believe there existed facts and circumstances which warranted the suspension, variation or cancellation of his Commercial Pilot (Aeroplane) Licence, Private Pilot (Aeroplane) Licence and Student Pilot Licence.
CASA considered there were reasonable grounds to believe that on 21 March 2012 (sic – 2011) in Maroochydore, Queensland, during a CASA Air Transport (Aeroplane) Pilot Licence (ATPL) Flight Planning Cyber Exam (Cyber Exam), he contravened Regulation 298A(1)(e) of the CAR. CASA informed the applicant that he had 21 days from the date of the notice to show cause in writing why CASA should not find that his Pilot Licences should be varied, suspended or cancelled.
The applicant’s solicitors, Maitland Lawyers, responded to the show cause notice in a letter dated 1 March 2013. The applicant denied the allegations made by CASA that he cheated in the Cyber Exam.
On 17 May 2013 CASA gave the applicant a Supplementary Notice of Proposed Action to suspend his pilot licences and a Supplementary Notice of Proposed Finding of Contravention of Regulation 298A(1) of the CAR. Effectively, CASA alleged that the applicant had also breached Regulation 298A(1)(c) of CAR.
On 22 May 2013 Maitland Lawyers responded to CASA’s supplementary show cause notice. The applicant denied that he had breached CAR 298A(1)(c).
After considering the responses provided by Maitland Lawyers, on 8 August 2013 CASA notified the applicant that it had decided:
(a)the applicant contravened Regulation 298A(1)(c) of the CAR; and
(b)to suspend his Student Pilot Licence, Private Pilot (Aeroplane) Licence and Commercial Pilot (Aeroplane) Licence until such time as six months had elapsed from the date of commencement of the suspension.
In its letter of 8 August 2013, CASA stated that it made no finding that the applicant contravened Regulation 298A(1)(e) of the CAR. CASA also explained that in accordance with Regulation 298A(5), the effect of its decision was that the applicant was taken not to have passed the Cyber Exam which he attempted on 21 March 2011 and that he was not permitted to attempt any prescribed examination for a period of one year from that date. However, it noted that two years had already passed since the date he sat the Cyber Exam and therefore he was permitted to sit that exam again at any time convenient to him.
The decision to suspend the applicant’s licences was made under Regulation 269(1)(c) and (d) of the CAR.
On 13 August 2013 the applicant lodged an application with the Tribunal seeking review of CASA’s decision made on 8 August 2013.
This matter was set down for hearing commencing on 4 November 2013. In a letter dated 28 October 2013 CASA notified Maitland Lawyers and the Tribunal that it intended to rely on a number of other breaches it said had been identified by the evidence now available to it. CASA said:
Having regard to the evidence now available to the Tribunal and for the avoidance of any doubt, the respondent [CASA] will contend at the hearing that, the applicant committed acts proscribed by sub-regulations 298A(1)(c)(iii), 298A(1)(d)(iii), 298A(1)(e) and 298A(1)(f)(iii).
The issues I am required to determine are:
(a)whether the applicant breached Regulations 298A(1)(c)(iii), 298A(1)(d)(iii) 298A(1)(e) and/or 298A(1)(f)(iii);
(b)whether CASA is entitled to rely on claimed breaches of the CARs notice of which was provided in the letter of 28 October 2013; and
(c)if the applicant breached one or more of the Regulations referred to in (a), whether the preferable decision was to suspend his pilot licences for a period of six months.
QUALIFICATIONS FOR AN AIR TRANSPORT PILOT (AEROPLANE) LICENCE
Regulation 5.09(1)(b) provides that CASA must issue a flight crew licence to an applicant if, and only if, the applicant, amongst other things, is qualified to hold the licence. For the purposes of Regulation 5.09(1), a person is qualified to hold an ATPL (A) if they satisfy the requirements set out in Regulation 5.165. Included amongst those requirements under Regulation 1.165(1)(a) is that the person has been awarded a pass in an air transport pilot (aeroplane) licence theory examination.
The ATPL (A) theory examination consists of seven separate subject-parts which a candidate may attempt singularly or in any number at a sitting (The Australian Air Transport Pilot Licence (Aeroplane) Examination Information Book published by CASA). The seven subject-parts are:
·flight planning – 3 hours
·navigation – 1.5 hours
·performance & loading – 2.5 hours
·aerodynamics & aircraft systems – 1.5 hours
·human factors – 1.25 hours
·meteorology – 1.5 hours
·air law – 1.5 hours
Each subject-part exam has a pass mark of 70% except for air law, which has a pass mark of 80%.
According to Mr S, who describes himself as an aviation theory specialist currently employed by CASA in the position of Flight Crew Licensing/CyberExams Administrator, a candidate passing a subject exam is awarded a temporary pass for that subject. When all seven part-exams have been passed within the required period of time (3 year calendar period), the candidate is awarded a full ATPL theory exam credit for aeroplanes.
STRUCTURE AND CONDUCT OF THE ATPL (A) CYBER EXAM
Mr S explained that the Cyber Exam was first introduced as one of the subject parts of the ATPL theory exam in 2002. He said it was designed to test the understanding of flight planning procedures and requirements including, but not limited to, fuel requirements; altitude capability; performance limitations; and calculations of point of no return etc. The questions on an exam paper offer multiple choice answers. Generally, a candidate is given the option of selecting the correct or nearest to correct answer from 3 to 5 alternative possibilities. There are 17 questions in an exam paper. The first two questions on the exam paper successfully attempted by the applicant were allocated one mark each; questions 3 to 7 were allocated two marks each; questions 8 to 12 were allocated three marks each; questions 13 and 14 were allocated four marks each; and questions 15 to 17 were allocated five marks each. The number of marks allocated to each question represented the degree of difficulty that the question posed to a candidate. Mr S said that at the time the applicant sat the Cyber Exam, there were 87 questions in total which were within the CASA exam database for that subject. When CASA became aware of an organised system of examination cheating in 2012, it acted immediately to change the questions and answers in the exam database and the total number of questions on its database increased from 87 to 105 questions.
The exam questions generally are based on a Boeing 727-200 series aeroplane. Candidates are required to provide their own Boeing 727 Performance and Operating Handbook (Abbreviated) (the 727 Operating Handbook) which is available from CASA. The applicant provided the Tribunal with a copy of the 727 Operating Handbook which he said he used for his study purposes. Essentially, it is comprised of performance tables and graphs dealing with take-off and climb performance; cruise performance; descent and landing performance; normal operations; and emergency operations. All up, it is some 200 pages in length.
A candidate for the ATPL Cyber Exam is required to refer to those tables in order to answer the questions posed in the examination. A candidate is permitted to apply underlining and highlighting in the 727 Operating Handbook but is not permitted to tag any pages. The candidate may also take into the examination High Altitude En-route Charts and navigation equipment. Navigation equipment does not include electronic devices but a candidate is permitted to use a circular slide rule computer.
All examination sittings are conducted and invigilated by officers/employees of a private company, Assessment Services Pty Ltd. The role of the invigilating officer is said to be to enable the examination to be conducted properly and fairly. The invigilating officer is required to ensure that each of the candidates complies with the relevant rules and procedures. CASA’s Examination Information Book (Version 2.4 – September 2013) makes it clear that the invigilating officer is neither an examiner nor an instructor.
According to the applicant, on the day he sat for and passed the Cyber Exam, the examination room contained approximately 12 computers, all of which we used in the course of the examination. There were two invigilators who he said physically checked the materials brought in by candidates, page by page. The invigilating officer started each computer to bring up the correct exam for the candidate. When the candidate is ready to commence, they click the Begin Exam button and when their time for the exam has expired, no further entries can be made and the examination paper is submitted automatically. To answer a question, a candidate simply clicks on one of the suggested multiple choice answers. At that time, materials were provided to candidates for the purpose of calculating the answers to questions but those calculations were not lodged with CASA. The invigilator then removed and destroyed that material following an exam.
THE SO-CALLED CHEAT SHEETS
In his written statement of evidence, Mr S said that on 24 September 2012 CASA received an email from an informant (the informant) about alleged cheating in the Cyber Exam by the use of pre-prepared cheat sheets. He said that for the past 4 to 5 years a considerable number of ATPL candidates sitting the Cyber Exam had been making and passing on cheat sheets which were inserted into material allowed to be taken into the exam. It appears the cheat sheets were inserted into the 727 Operating Handbook and made to appear as part of one of the tables dealing with long-range cruise planning. Mr S demonstrated this by showing how the spine of a 727 Operating Handbook had been broken open to permit the insertion of the additional pages.
Attached to Mr S’s witness statement were four pages which, at a cursory glance, appear to be part of a long-range cruise planning table for the Boeing 727. Each of those pages has a heading which is identical to the 727 Operating Handbook for long-range cruise planning at flight level 260 on all engines. The vertical axis on the left side sets out various gross weights in 1000 kg steps as well as true air speeds. The horizontal axis sets out gross weights in 100 kg intervals to enable the tables to be used directly without the need to interpolate. However, in place of the cruise distance figures which form the central part of the table in the Operating Handbook, which have been deleted, is a series of single or two-line abbreviations which identify departure and destination aerodromes, details about the question and the answer to the question. An example follows:
AD – SY 115 E NATYA GW74350 FL290 .82 M HOLD 15 LW: 70350 KG
Unscrambled, the above example means:
·AD-SY identifies the flight to be from Adelaide to Sydney.
·115 E NATYA means the aircraft is 115 nautical miles east of a reporting point called Natya.
·GW 74350 is a reference to the gross weight of the aircraft at that time being 74,350 kg.
·FL290 indicates the aircraft is cruising at flight level 290 or 29,000 feet on standard barometric pressure 1013 millibars.
·.82 M refers to the Mach number of the aircraft from which the true airspeed can be calculated.
·HOLD 15 means 15 minutes holding is required at the destination aerodrome.
·LW: 70350 KG provides the answer to the question asked, i.e., the landing weight of the aircraft being 70,350 kg.
As Mr S said, there is sufficient material in that information to identify a specific exam question and its answer. This would enable a candidate to complete the answer in no more than one or two minutes whereas, without the cheat sheet, it would take approximately 10 – 12 minutes to calculate the answer. Of course it also ensures that the candidate selects the correct answer, assuming that the cheat sheet has the correct answer.
THE PROSCRIBED CONDUCT
Regulation 298A of the CAR refers generally to cheating by examination candidates. Although CASA relies only on four of the subregulations, I should set Regulation 298A(1) out in full as I believe it will assist in understanding the nature of the conduct which is proscribed. Regulation 298A(1) provides:
(1)CASA may give written notice to a person who attempted a prescribed examination if it believes on reasonable grounds that the person has committed any of the following acts without CASA’s permission:
(a)copied any part of the examination paper;
(b)removed:
(i) any part of the examination paper; or
(ii) a copy of any part of the examination paper;
from the place where the person attempted the examination;
(c)given to another person:
(i) any part of the examination paper; or
(ii) a copy of any part of the examination paper; or
(iii) any information about the questions contained in the examination paper, being information that might give anyone an unfair advantage in the examination;
(d)before the examination – knowingly received from another person, or otherwise knowingly obtained possession of:
(i) any part of the examination paper; or
(ii) a copy of any part of the examination paper; or
(iii) any information about the questions contained in the examination paper, being information that might give the person an unfair advantage in the examination;
(e)before or during the examination – knowingly received from another person, or otherwise knowingly obtained possession of:
(i) any part of the model answer; or
(ii) a copy of any part of the model answer; or
(iii) any information about the content of the model answer;
(f)during the examination:
(i) helped another person to complete any part of the examination; or
(ii) received help from another person to complete any part of the examination; or
(iii) used any material or aid that CASA does not permit to be used; or
(iv) read the examination work of another person attempting the examination;
(g)caused or assisted the commission of, or attempted, any act referred to in paragraph (a), (b), (c), (d), (e) or (f).
Regulation 298A(2) provides that the notice given by CASA under subregulation (1) must set out the act which CASA believes a person has committed and the grounds for that belief.
Regulation 298A(4) provides that CASA must notify a person after taking into account any representations which they may make, whether it is satisfied that the person has committed the act mentioned in the notice. The immediate consequences for such a person are set out in Regulation 298A(5) which provides:
(5) If CASA notifies a person under subregulation (4), the person:
(a)is taken not to have passed the examination;
(b)is not permitted to attempt any prescribed examination for a period of one year from the day of the first-mentioned examination.
In fact, if the person applies under Regulation 297A(2) for a review of CASA’s decision made under Regulation 298A(4), Regulation 298D applies and the person is not permitted to attempt any prescribed examination until the Tribunal decides the application in the applicant’s favour; or a period of one year passes from the date of the examination to which the application relates, whichever happens first.
It may be of some significance to take notice of Regulation 298A(6). It provides:
(6)For the purposes of subregulation (1), a person attempts written examination if the person:
(a)attends the place where the examination is held at any time during the examination; and
(b)receives the examination paper, or any part of it, from the person conducting the examination.
Regulation 298A(8) sets out the following relevant definitions:
examination paper means all of the documents provided by the person conducting a written examination to persons attempting the examination.
model answer, in relation to an examination, means a document which sets out the correct, or suggested, answers to the questions set out in the examination paper.
prescribed examination means an examination conducted for the purpose of the issue or renewal of a licence, certificate, authorisation, rating or endorsement.
written examination means an examination that requires answers to be given in writing and includes an examination that sets out multiple choice answers to each question.
THE CONSTRUCTION OF REGULATION 298A
Section 13 of the Legislative Instruments Act 2003 deals with the construction of legislative instruments. Relevantly, it provides:
(1) If enabling legislation confers on a rule-maker the power to make a legislative instrument, then, unless the contrary intention appears:
(a)the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act; and…
There was no dispute between the parties that the Regulations dealing with cheating by examination candidates were properly made pursuant to s. 98 of the Civil Aviation Act 1988. They clearly relate to the safety of air navigation.
Section 15AA of the Acts Interpretation Act 1901 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.
The construction of Regulation 298A is in dispute. Regulation 298A was introduced into the CAR on 21 July 1994 (Statutory Rules 1994 No 260). Save for some minor amendments, it remains in essentially the same form today as it was when first introduced. At the time it was first introduced into the CAR, the format of the flight planning examination was very different to what it was in when the applicant undertook the examination on 21 March 2011. It was in a paper format and did not become electronic until 2002. That is why there are a number of references in Regulation 298A to the examination paper. Each candidate sitting an examination was provided with an examination paper. Typically, each examination paper in a particular sitting of the flight planning examination was identical.
However, when the format changed in 2002, as Mr S explained in his evidence, the examination paper was presented to each candidate in electronic form on a computer screen and the answers were provided by selecting one from a number of possible answers. At the time the applicant successfully completed the Cyber Exam, CASA utilised an exam database which contained 87 questions. No two candidates sitting the examination at the same time received the same 17 questions. The questions given to each candidate were randomly selected from the exam database. Despite this radical change in the format of the examination paper, Regulation 298A remained unaltered. This needs to be borne in mind when interpreting the regulation, as does the need to give effect to its purpose or objects.
It is, in my view, helpful to examine the Explanatory Statement which accompanied the introduction of Regulation 298A. It states:
New subregulation 298A (1) provides that the Authority [then the Civil Aviation Authority] may give notice to a person if it is satisfied on reasonable grounds that the person has done any one of a number of specified acts in relation to his or her attempt at an examination. These acts include copying the examination paper, removing the examination paper from the examination area, receiving a copy of the examination paper or model answer before attempting the examination, reading the work of another examination candidate and giving or receiving help to complete any part of the examination.
The Explanatory Statement also sets out the object of Regulation 298B as follows:
New regulation 298B deals with persons who are involved in unfair examination conduct, but who are not attempting an examination (eg persons conducting examinations).
There are a number of expressions used in Regulation 298A which are defined (as set out above) and some which are not. One has to understand the expressions in the context of the Cyber Exam attempted by the applicant on three occasions, where numerous candidates sat for this exam at the same time as the applicant and the questions which they were required to answer were not identical but were selected at random from an exam database held by CASA.
The expression prescribed examination is a defined term. There can be no question that a theory examination conducted for the purposes of the issue of an ATPL is a prescribed examination as that expression is defined in Regulation 298A(8). It is one of the qualifications for the issue of an ATPL that the applicant has been awarded a pass in that prescribed examination (Reg 5.165). CASA is authorised to set and conduct such an examination. In fact, in the context of an applicant for an ATPL, any one of the seven subject-parts which comprise the theory examination for an ATPL properly meets the description. A candidate for an ATPL must pass the exam in each of those subject-parts within the time period stipulated by CASA. Therefore, in the context of the dispute in this matter, the prescribed examination is the Flight Planning Cyber Exam.
The expression, examination paper, needs to be understood in light of the changed format of the flight planning examination. It is no longer a reference to sheets of paper on which are printed identical exam questions but rather, it is each and every set of 17 questions randomly drawn from the exam database and provided to every candidate at a sitting for the Cyber Exam. It is not limited to the questions put to any particular candidate because the definition of the expression examination paper refers to all of the documents provided by the person conducting a written examination to persons attempting the examination. In fact, in any one sitting, all 87 questions most likely appeared on the examination paper, although each of the candidates who attempted the exam on that occasion probably had a significant number of different questions put to them. That construction conforms to the object or purpose of Regulation 298A which is to prohibit cheating by examination candidates. It would defeat the purpose if the expression examination paper was limited to the questions given to only one candidate. It would also be inconsistent with the definition.
The word examination is not defined and therefore it should be given its ordinary meaning in the context in which it appears in the CAR. The Concise Oxford Dictionary defines examination as follows: 3a the testing of the proficiency or knowledge of students or other candidates for a qualification by oral or written questions. In the context of Regulation 298A, the word examination is prefaced by the definite article, the. Despite that, it does not mean that where the expression the examination is used in Regulation 298A, it is a reference only to the questions put to one candidate in the examination. To limit the proscribed conduct in this way would be to defeat the purpose of the regulation. Furthermore, it is inconsistent with the definition of the expression examination paper which refers to persons rather than a single candidate. Therefore, the expression the examination when applied to the Cyber Exam must mean the testing of all candidates at any relevant time when examinations are conducted. In fact, it must be a reference to each and every occasion on which candidates are permitted to sit the Cyber Exam. Following the introduction of the Cyber Exam, that testing must include all of the questions held by CASA on its exam database.
Applying the construction of the expressions to which I have referred above results in the interpretation of Regulation 298A set out below.
Regulations 298A(1)(a), (b) and (c) are all essentially concerned with a candidate who has attempted the Cyber Exam and who copied or removed any part of the examination paper (effectively, any question on CASA’s exam database) from the place where the candidate attempted the examination; or given to another person any part of any question on the exam database or a copy thereof as well as information about questions contained in CASA’s exam database which might give another candidate an unfair advantage in the Cyber Exam.
On the other hand, Regulations 298A(1)(d) and (e) are essentially concerned with a candidate who has attempted the Cyber Exam and who has, before or during that examination, knowingly received or knowingly obtained possession of any part of CASA’s exam database or copy thereof; or any information about the questions on the exam database; or any part of a model answer to questions on the exam database or copy thereof.
Regulation 298A(1)(f) is concerned specifically with events which occurred during a Cyber Exam. It refers to giving assistance to a person to complete any part of the examination or receiving help from another person to complete any part of the examination. It also proscribes the use of any materials or aids which CASA does not permit to be used during the Cyber Exam.
Mr P Lithgow of counsel, who appeared on behalf the applicant, submitted that where the expression the examination appears in Regulation 298A, as far as the applicant is concerned, it means the Cyber Exam he undertook and passed on 21 March 2011. This was so despite the fact that the applicant sat the Cyber Exam on two prior occasions,
8 September 2010 and 31 January 2011, without success.
Mr Lithgow’s submission essentially follows the decision made by Deputy President PE Hack SC in Marsh and Civil Aviation Safety Authority [2013] AATA 729 where he said, at [29]:
The difficulty with CASA’s argument lies elsewhere in the language of the regulation. The examination referred to in reg 298A(1)(c)(iii) must be the same examination as has been attempted by the recipient of the notice. The use of the definite article means that “the examination” in reg 298A(1)(c) can only refer to the phrase “a prescribed examination” as it first appears in the regulation. There can be no question of anyone getting an unfair advantage in the examination which Mr Marsh undertook in October 2011 by the provision of information in July 2012.
According to Mr R Ashton of counsel, who appeared on behalf of CASA, such an interpretation must mean that the regulation has no effect at all. That is because each candidate sitting for the Cyber Exam has a random selection of questions put to them from a finite bank of questions. Not even candidates sitting in the same location will be undertaking precisely the same examination at that time. Mr Ashton is plainly correct when he submitted that Regulation 298A is directed in part at the future use of copied material obtained from past examination papers. Mr Ashton also submitted that the introductory words of the regulation referred to a person who attempted a prescribed examination where clearly the past tense is used and therefore it must have been intended to prevent provision of material to someone who will sit the examination in the future.
With respect to Deputy President Hack SC and Mr Lithgow, confining the expression the examination in the way in which they have does not give effect to the objects or purpose of Regulation 298A when those provisions are applied to the electronic form of the examination now conducted by CASA. The prescribed examination must be a reference to the flight planning Cyber Exam. The examination paper referred to in the regulation must be a reference to the questions given to all candidates who sit that exam. The questions given to all candidates are taken at random from CASA’s exam database. Therefore any one of those questions can properly be described as a part of the examination paper.
In my respectful opinion, it follows that the copying or removal of any question which appears on CASA’s exam database from the place where a candidate attempts the Cyber Exam; or where a candidate for that exam gives to another person any question or information about the questions on CASA’s exam database, being information that might give anyone an unfair advantage in the Cyber Exam, is proscribed conduct under Regulation 298A(1)(a), (b) and (c). Likewise, the references to part of the examination paper; any information about questions contained in the examination paper; and part of the model answer in Regulation 298A(1)(d), (e) and (f) must be references to any questions in the Cyber Exam which are on CASA’s exam database.
Although Mr Lithgow submitted that CASA should have proceeded, if at all, under Regulation 298B of the CAR, in my opinion, that is plainly incorrect. The introductory words of that regulation which deal with its application include: other than an examination candidate to whom subregulation 298A (1) applies…. As the Explanatory Statement amplifies, that regulation is concerned with persons involved in unfair examination conduct but who are not attempting an examination. As an example, it refers to persons conducting the examinations. In this case, the applicant is clearly a person who has attempted the Cyber Exam on three occasions. Regulation 298B does not apply to him.
ADDITIONAL BREACHES CLAIMED BY CASA AFTER NOTICE GIVEN
Mr Ashton submitted that it was proper for the Tribunal to examine whether breaches of Regulations 298A(1)(d)(iii), (e) and (f)(iii) in fact occurred. He said the Tribunal may have regard to new, fresh, additional or different evidence from that taken into account by the original decision maker. Mr Ashton referred to the High Court of Australia decision in Shi v Migration Agents Registration Authority (2008) 235 CLR 286. That case involved the cancellation of the registration of a migration agent by the Migration Agents Registration Authority. The question before the Court was whether this Tribunal was limited to considering the facts and circumstances existing only at the time of the decision to cancel the registration.
In his reasons for decision Kirby J referred to a number of decisions of the Federal Court of Australia and in particular Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 where Bowen CJ and Deane J made it clear that the question for determination by the Tribunal was not whether the decision which the decision-maker made was the correct or preferable one on the material before him, but rather whether that decision was the correct or preferable one on the material before the Tribunal. His Honour then said, at 299:
When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration.
Also, Hayne and Heydon JJ said this about temporal limitations, at 315:
Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary-decision-maker to act; there is nothing in the AAT Act which would provide such limitation.
It is clear that Regulations 298A(1)(d)(iii), (e) and (f)(iii) contain temporal limitations in that they refer to events which took place before the examination or during the examination. However, the further material referred to by CASA is clearly material which, if accepted, would bear upon circumstances as they existed at the time of the original decision. That material is clearly admissible. The only question which might arise is whether the applicant has had sufficient time to address that further evidentiary material. Mr Lithgow did not complain that the applicant had insufficient time to deal with any additional material. Therefore, it was my view that it should be admitted into evidence.
The secondary question which arises from the additional material might be whether the Tribunal can, if satisfied on the balance of probabilities that the material gives rise to breaches of other Regulations, make such a finding. Once again, I did not understand Mr Lithgow to be stating it could not. In my view, the applicant had the opportunity to address the further breaches claimed by CASA and therefore there is nothing to exclude me from making such a finding, provided the evidence supports it.
BREACH OF REGULATION 298A(1)(c)(iii)
As I have indicated above, this subregulation is concerned with information about questions contained in CASA’s exam database which might give anyone an unfair advantage in the Cyber Exam.
In my opinion, there can be no question that this subregulation applies to the applicant given that he is a person who attempted the Cyber Exam on three occasions. The Flight Planning Cyber Exam is a prescribed examination for the purposes of Regulation 298A(1). The only issue is whether the applicant gave information about questions contained in the examination paper (any question on CASA’s exam database) to another person which might have given that person unfair advantage in the Cyber Exam.
The first point to make is that the information contained on the cheat sheets, which, as I have demonstrated above, enables a candidate to identify a question on CASA’s exam database and provides that candidate with the answer to the problem. By my calculation, there are at least 86 and possibly 87 questions which can be identified by the material on the cheat sheets, complete with answers. There can be no question that a candidate who had access to the cheat sheets in the course of sitting for the Cyber Exam would have an unfair advantage over candidates who did not have access to that material. That advantage arises from the fact that most of the answers appear to be correct and, because some of those questions are complex and require substantial time for a candidate to resolve, there is a significant and valuable saving of time to complete the questions in an exam which is limited to 3 hours.
The only other question regarding this subsection which I need to determine is whether the applicant gave a copy of the cheat sheets to another person. I note that Regulation 298A(1)(c) does not require the person who passes on material such as the cheat sheets to know that they contain information about questions on the examination paper which might give an unfair advantage to a person in the examination. However, it would be somewhat extraordinary if the person passing on that material was not aware of its content and purpose given that the person who passed on that material must be a person who has attempted the Cyber Exam.
The evidence discloses that the applicant received the cheat sheets by email from a
Mr Kyle Marsh and he forwarded that material to the applicant in an email dated 7 July 2012. The applicant subsequently, on the same day, forwarded the cheat sheets to the informant. The informant forwarded the cheat sheets to Mr M, of CASA, on
24 September 2012. Each of those emails, under the heading Subject, describes the material as: Flight Planning Answers.
The applicant lodged with the Tribunal two statements, the first made on 1 October 2013 and the second on 31 October 2013 which were taken into evidence. In the first statement, the applicant said that he had completed all seven of the ATPL theory examinations. That of course means that the applicant is a person who has attempted the Cyber Exam. In fact, in that statement he said that he passed the Cyber Exam on the fourth attempt although CASA’s records show that he passed it on his third attempt.
In his first statement the applicant said he met Mr Marsh in Brisbane during a theory course for the instrument rating examination (IREX) in about July 2012. The applicant also said that he had a conversation with Mr Marsh about the ATPL flight planning examination and mentioned to him how he struggled with that subject before passing on his fourth attempt. He mentioned to Mr Marsh that the informant was looking for some additional study material which might assist him with that examination. The applicant then said that Mr Marsh told him he still had his study material and that he would email it to the applicant who could forward it to the informant.
The applicant said that on 7 July 2012 he received an email from Mr Marsh entitled Flight Planning Answers. He then said: I did not open the attachment, however, I presumed from my earlier discussions with Marsh that the email attached study questions and their answers. I on-forwarded the email and attachment to [the informant] and thought no more of it.
In his first statement the applicant claimed he was not aware of the exact nature of the attachments until this was made clear to him by CASA. He also claimed that it was his belief that the attachment to the email from Mr Marsh contained study material and answers from one of the courses he had previously undertaken which was provided by Seacombe Aviation and Advanced Flight Theory Pty Ltd (AFT). However, the applicant said that he had since examined the document attached to the email he received from Mr Marsh which he forwarded to the informant without opening. He said that the document he forwarded to the informant contained 93 different situational (sic) questions and suggested answers. He also noted from the documents provided by CASA for the purposes of this hearing that five of those questions appeared to be similar or the same as questions which were on the Cyber Exam which he sat in March 2011.
The informant also provided a statement of evidence made in October 2013 which was admitted into evidence. The informant said that he became friendly with the applicant and they shared a house with a number of other people also undertaking a performance and loading course offered by AFT in about May 2012. He said in the course of talking about ATPL examinations with the applicant and how difficult the flight planning examination was, the applicant told him that he had: some cheat notes that could help me out in the examination. According to the informant, the applicant also said: they got him through the examination when he had undertaken it. He claimed that the applicant told him that cheat sheet notes were set up in a format which looked identical to pages from the Boeing 727 handbook and were easy to reference and use. He also said the applicant told him that some people who used the cheat sheet notes completed the examination in 40 minutes to 1 hour but it otherwise took examination candidates the full three hours to complete. The informant said the applicant told him that he could sell to him the cheat sheet notes for the right price but then said he would look after the informant. He said he did not have a copy of the notes with him but he would get them from someone in Melbourne and provide them to him.
The informant then claimed that in July 2012 the applicant telephoned him and said that he was sending the cheat sheets which would help him get through the flight planning exam. He said on 7 July 2012 the applicant emailed the cheat sheet notes to him and he attached to his witness statement a copy of the email and cheat notes received from the applicant. The cheat sheet notes attached to the informant’s witness statement are those notes to which I have referred above. In cross-examination the applicant agreed that he had a telephone conversation with the informant in July 2012 but denied that he used the words cheat sheets.
In cross-examination the applicant agreed that he met Mr Marsh in about July 2012. He also confirmed the conversation he had with Mr Marsh regarding the flight planning examination. When asked about whether Mr Marsh said to him that he had study material which might assist him in the examination, the applicant appeared to resile from what was in his written statement and said that he could not recall the exact words used. When pressed by Mr Ashton regarding the expression used and the description study material, the applicant said: I assume it would be. Under further questioning by
Mr Ashton, the applicant said it was most likely that he told the informant that he described it as study material. Mr Ashton also asked the applicant whether, when he received the email from Mr Marsh, he opened that email or the attachments. The applicant responded that he did not open it but forwarded it straight away. He subsequently agreed that in order to forward the email it had to be opened but insisted that he did not open the attachments. When it was put to the applicant that in opening the email he saw the cheat sheets, the applicant said: No, I didn’t. Mr Ashton asked the applicant whether the stated subject on the email describing its content as flight planning answers was unusual, the applicant answered: No. I just forwarded it on. Mr Ashton also asked the applicant whether at the time that he responded to the Show Cause notices issued by CASA, he still believed that the documents sent to him by Mr Marsh were study materials, the applicant responded by saying yes and that he had never seen the documents until Mr Maitland asked him to look at the documents after forwarding them to him.
Mr Ashton then referred the applicant to the Notice of Proposed Action to Suspend, Vary or Cancel (the applicant’s student, private and commercial pilot licences) which is dated 20 February 2013 (the first Show Cause notice). In that document, CASA referred to an email received from Mr Marsh on 7 July 2012 which the applicant forwarded to the informant on the same day. The first Show Cause notice referred to the email the applicant sent to the informant as containing pages from the B727 Performance and Operating Handbook. It also expressly referred to cheat sheets contained within the B727 Performance and Operating Handbook.
In response to the first Show Cause notice, Maitland Lawyers wrote to CASA on
25 February 2013 requesting that CASA provide it with copies of the email sent by
Mr Marsh on 7 July 2012 and the email said to have been forwarded by the applicant to the informant.
CASA also provided the applicant with a Supplementary Notice of Proposed Action (the second Show Cause notice). In that notice CASA stated that it considered there were reasonable grounds to believe that the applicant gave to the informant information about questions contained in a theory examination paper which were answers to questions and information about questions contained in that examination paper.
The applicant’s solicitors responded to the first Show Cause notice in a letter dated 1 March 2013. Maitland Lawyers said that its response to the Show Cause notice was in accordance with its instructions, presumably from the applicant. Maitland Lawyers said:
On our instructions, the document appears to be a sample calculation which may have originated from one of the many ATPL lecture notes which have existed for years around Australia.
At its highest, the document could be described as depicting a particular methodology for making calculations in relation to long-range cruise planning for the Boeing 727 type, but nothing more.
In their response, Maitland Lawyers also said: We reject your use of the term “cheat sheets”. The applicant’s solicitors also said there was no evidence to suggest that the sample calculations matched a particular question on the examination sat by the applicant on 21 March 2011.
In cross-examination the applicant was asked whether, when he first instructed his solicitors, he thought that the attachments were study materials and his answer was: Yes, absolutely, and that I never cheated in my exam, that’s why I contacted Mr Maitland. Mr Ashton then put to the applicant that despite his evidence that when he was first shown the so-called cheat sheets, which he recognised as cheat sheets, he could not have told his solicitor that was the case given what was said in the response to the first Show Cause notice. The applicant responded by saying that he did not proof read the letter his solicitors wrote in response to the Show Cause notice and he did not read the letter prior to it being sent to CASA. The applicant also insisted that he told Mr Maitland about not opening the attachment to the email which he forwarded to the informant before Mr Maitland responded to the Show Cause notice.
Mr Ashton also referred to the second Show Cause notice and put to the applicant that it squarely raised the cheat sheet issue. The applicant agreed although he could not recall whether he had read the response to that notice before it was sent. When Mr Ashton suggested to him that his explanation now given at the hearing, that he had not opened the attachment to the email and therefore was unaware of the content of the attachment, was not to be found in Maitland Lawyers’ letter responding to the second Show Cause notice, the applicant referred to paragraph 6 of that letter. However, that paragraph simply refutes the assertion that the documents sent by Mr Marsh contained information about the particular examination attempted by the informant. In fact Maitland Lawyers reiterated that the document appeared to be a copy of the AFT Study Guide, which was available to anyone.
In cross-examination when the applicant was again asked whether he read the response Maitland Lawyers provided to CASA in respect of the second Show Cause notice, he responded: I can’t remember. He nevertheless said that he told Mr Maitland the entire story over again. Given the comments made by the applicant regarding the instructions he gave to his solicitors and the fact that he claimed the response to the Show Cause notices were sent before he had read that them, Mr Ashton called for the production of the solicitors’ file in this matter. Mr Ashton also submitted that if material on the solicitors file contained privileged material, that privilege had been waived.
Mr Ashton referred me to the High Court of Australia decision in Mann v Carnell (1999) 201 CLR 1 where Gleeson CJ, Gaudron, Gummow and Callinan JJ explained in some detail waiver of privilege at common law. Their Honours, at 13, said:
At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege.… It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege (34). Examples include disclosure by a client of the client’s version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication (35), or the institution of proceedings for professional negligence against a lawyer, in which the lawyer’s evidence as to advice given to the client will be received (36).
Waiver may be expressed or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.… This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank (38), the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon the privilege.… However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication.
In my opinion, the applicant had waived legal professional privilege in respect of communication with his solicitors given his account of the communication with Mr Maitland regarding his instructions for the Show Cause notices. The applicant’s evidence regarding the instructions he gave to his solicitors is inconsistent with the maintenance of legal professional privilege which may have attached to those instructions. Maitland Lawyers subsequently produced the relevant documents which were taken into evidence.
I also had in evidence the statement made by Mr M, who was employed by CASA as an investigator. In that statement Mr M referred to a telephone conversation he had with the applicant on 23 October 2012. He explained to the applicant that he was conducting an investigation into possible cheating in the ATPL flight planning examination and that he had information that the applicant may have access to and used a list of questions and answers to that exam. The applicant denied that suggestion. Mr M then put to the applicant that he passed on the questions and answers to the ATPL flight planning examination to another person. Once again, the applicant flatly denied that suggestion. He made no mention of the email he sent to the informant nor the fact that he believed that the email had attached to it study materials which might assist another person when studying for the Cyber Exam.
Documents from the file of Maitland Lawyers disclose that the applicant received a copy of the 1 March 2013 response to the first Show Cause notice on 6 March 2013. His response to what Mr Maitland had written was: I’m very happy with that.
On 22 May 2013 Mr Maitland sent an email to the applicant informing him that CASA had issued a supplementary Show Cause notice which asserted that he had given sample examination questions to the informant. Mr Maitland asked the applicant if he wanted his firm to act on his behalf and respond to that notice. It also asked for instructions. Shortly thereafter, Mr Maitland sent the applicant a further email enclosing the second Show Cause notice and confirming instructions to respond to CASA on his behalf. Although seeking further instructions, Mr Maitland then said:
In essence we will be saying to CASA that you had not received the notice until today, that you may provide further instructions but in the meantime we say that you didn’t meet [the informant] until 15 months after you sat your own exam, that you did not write down any of the exam questions during your examinations and that the document you gave to [the informant] is an old document which has been used as an aid to students as a guide to answering questions which are randomly selected by CASA and in any event the document appears to be a copy from the AFT notes which are available to anyone on a commercial basis.
The applicant responded by email on the same day stating that he never wrote down any question when in his exam and he did not pass any question on to anyone. He then said:
The only notes i (sic) used to study were Secombe Aviation and AFT Notes, in AFT notes some of the questions in there (sic) folder are the same that was on the sample document i (sic) received from MARSH. I was not aware of this at the time of my exam. I passed fairly and had no prior knowledge that i (sic) had seen any known questions.
The applicant sent to Mr Maitland a further email on 23 May 2013 in which he set out the difficulties and expenses incurred in passing the ATPL flight planning exam. He also said this about the materials which he received from Mr Marsh and forwarded to the informant:
It was a short conversation about our exams that he mentioned he has some notes that i (sic) could send [the informant] who i (sic) met the previous month. [The informant] had previously asked me for any notes i (sic) had for flight planning, and then when [Mr Marsh] mentioned to me he had some, i (sic) thought i (sic) was doing the right thing, and forwarding an email. I never opened it nor looked at it until i (sic) received a copy of the email from CASA.
There were a number of subsequent emails sent by the applicant to Mr Maitland in which the applicant claimed he was unaware that the email sent to him by Mr Marsh was a list of questions (and answers) which could get him or anyone else into trouble or give them an unfair advantage for the flight planning exam. For unexplained reasons, when drafting the responses to both Show Cause notices for the applicant, it appears Mr Maitland chose not to mention the fact that the applicant had not opened the attachment to the email he forwarded to the informant.
However, that is far from the end of this matter. There can be no question that the applicant did pass on materials to the informant which, had the informant attempted the Cyber Exam, would have given him an unfair advantage in that examination. While the applicant maintains that this was an innocent passing on of study materials, I find his explanation implausible. There are a number of reasons for this.
As a person who has attempted the Cyber Exam on three occasions, and who has undertaken formal courses in the ATPL flight planning exam, there can be no question whatsoever that the applicant understood what study materials looked like. In fact the applicant put into evidence a bundle of documents containing such materials which appear to have been produced by AFT. Each of those revision questions first contains a narrative regarding the route being flown and the details of the aircraft performance as well as meteorological information. It then sets out the question to be answered. That question is followed by the answer which includes all of the details regarding how the calculation is made to arrive at the answer. By way of contrast, as can be seen in the example at [22], there is no narrative on a cheat sheet but merely parameters which enable identification of specific questions, followed by an answer. Furthermore, that information is contained within a document which, on its face, appears to be taken from the Boeing 727 Operating Handbook. I have no doubt whatsoever that a person who has attempted the ATPL flight planning exam on three occasions would immediately recognise the material provided by Mr Marsh as cheat sheets. In fact, the applicant admitted so much stating that when first shown the cheat sheets, he recognised them as such.
It is not for me to speculate why Mr Maitland did not include the applicant’s innocent explanation of forwarding the documents received from Mr Marsh without opening the attachments and therefore not being aware of their contents in the statements he prepared on behalf of the applicant. However, the answer may lie in the explanation provided by the informant.
Putting aside for the time being the stark differences between the accounts of the informant and the applicant regarding the conversations they had about the Cyber Exam, and the provision of materials (whether cheat sheets or study materials) to the informant, in the course of his oral evidence, the informant produced his mobile telephone on which he had access to his emails and he located the email sent by the applicant on 7 July 2012. The email disclosed that the documents were not in fact attached to the email. In the course of his examination-in-chief the informant was asked to open the email on his telephone and to explain what he could see. He said: On opening the email it brings up the pages of the Boeing 727 manual with the cheat notes on it. I examined the email on the informant’s iphone and what he said was correct. The documents formed part of the email and therefore, with the email open, the documents were plainly in view by simply scrolling down that email page. As the applicant said in evidence, in order to forward the email he received from Mr Marsh, he had to first open it. Having done so, he must have seen the format of the documents attached to that email. It is simply implausible that he did not look at those documents which form part of the email. Having done so, he would have been immediately aware that they were in fact cheat sheets disguised as tables in the Boeing 727 Operating Handbook. Furthermore, having opened that email, he could not help but see that the subject matter of the email was Flight Planning Answers. The email was not about study materials which, in any event, would have been so voluminous that they would not have been capable of transmission by that method. Furthermore, the email and its contents are entirely consistent with what the informant said occurred in the course of discussions he had with the applicant which led to him receiving the email on 7 July 2012. I find, on the balance of probabilities, that the applicant knowingly gave to another person, the informant, information about questions contained in the Cyber Exam examination paper which might give anyone an unfair advantage in that examination.
DID THE APPLICANT CHEAT IN THE CYBER EXAM
I should say at the outset that there was no direct evidence that the applicant cheated in the Cyber Exam which he sat and passed on 21 March 2011. The evidence is either circumstantial or based on hearsay. It requires me to draw inferences which CASA submitted must lead to the inescapable conclusion that the applicant cheated in that exam in order to pass.
Mr Lithgow referred to what he described as the Briginshaw Test which is found in the High Court of Australia decision Briginshaw v Briginshaw (1938) 60 CLR 336. He quoted the passage from Dixon J where he said, at 362:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
Mr Lithgow also submitted that there was no evidence of any tampering with the Boeing 727 Operating Handbook which the applicant said he used when he sat for that exam. With respect to Mr Lithgow, that is not entirely correct. In his evidence, Mr S disclosed how the spine of that book can be opened so that sheets may be inserted. In fact the Handbook which the applicant said he used in the exam and which was taken into evidence does disclose separation of the spine immediately prior to the last page in that document.
In my opinion, it is proper in this case to draw inferences from the probative evidence. I have not selected one possible answer from a number of possibilities. When all of the evidentiary material to which I have referred above is viewed in context, the inferences I have drawn are matters of legitimate deduction based on the probative value of that evidence. In addition, I accept the informant’s evidence as being accurate. His evidence was consistent with the objective evidence before me. Furthermore, the provision of that evidence was clearly detrimental to his interests. Therefore, I find, on the balance of probabilities, that the applicant did cheat in the Cyber Exam which he sat on 21 March 2011. I find that he had access to and used the cheat sheets in that exam, being materials which a candidate is prohibited from taking into the examination room.
BREACH OF REGULATION 269(1)(c) and (d)
Regulation 269 deals with the variation, suspension or cancellation of a licence, certificate or authority. Relevantly, it provides,
(1)Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or an authority, vary, suspend or cancel the licence, certificate or authority where CASA is satisfied that one or more of the following grounds exist, namely:
(a)…
(b)…
(c)that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d)that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or
(e)….
(3) Before taking action under this regulation to vary, suspend or cancel an authorisation, CASA must:
(a)(a) give notice, in writing, to the holder of the authorisation of the facts and circumstances that, in the opinion of CASA, warrant consideration being given to the variation, suspension or cancellation of the authorisation under this regulation; and
(b)(b) allow the holder of the authorisation to show cause, within such time as CASA specifies in that notice, why the authorisation should not be varied, suspended or cancelled under this regulation.
There can be no dispute that CASA has complied with Regulation 269(3). It provided the applicant with a notice in writing on 20 February 2013 and 17 May 2013 about the facts and circumstances giving rise to considering suspension of his licences and gave the applicant the opportunity to respond. It was only after receiving the applicant’s responses that CASA acted to suspend his licences.
Mr Lithgow submitted that CASA’s decision to suspend the applicant’s pilots licences under Regulation 269(1)(c) and (d) was manifestly excessive. Although Mr Lithgow did not go into detail in his submissions, it appears to me that the reasons relied upon are simply that I should find the applicant did not breach Regulation 298A(1)(c)(iii), (e) or (f)(iii). Mr Ashton submitted that the words used in Regulation 269(1)(c) with respect to any matter affecting are of wide import and this regulation applies where a pilot is in breach of a duty of the kind referred to even though the conduct itself was not unsafe.
Furthermore, Mr Ashton submitted that the purpose of requiring candidates to achieve a minimum examination standard is to ensure the safe operation and navigation of aircraft. He said that the applicant’s conduct by cheating had the effect of deceiving CASA into a belief that he had achieved the necessary standard in the ATPL flight planning exam. The consequence of this conduct was that he compromised an air safety prescription and exposed or potentially exposed members of the public to risk because, to his own knowledge, he had not completed CASA requirements for the ATPL authorisation.
In my opinion, Mr Ashton’s submission should be accepted. The can be no question that a candidate who has cheated in an ATPL theory examination and passed, has not attained the requisite standard in that examination and therefore satisfied the requirements for the issue of an ATPL. Failure to meet the required standard in that exam clearly exposes members of the public and other aviators to a safety risk if the person who failed to meet the standard was nevertheless granted the licence. As Mr Ashton submitted, by assisting others to cheat by passing on the cheat sheets to other persons who he was aware intended to sit the prescribed examination also compromises the safety of air navigation. I also accept Mr Ashton’s submission that a pilot, in the interests of safe operation and navigation of aircraft has a duty not to cheat and a duty not to help others to do so.
I find that the applicant’s conduct in cheating in the Cyber Exam and by passing cheat sheets on to other potential candidates for that examination breached his duty regarding the safe navigation or operation of an aircraft and was therefore in breach of Regulation 269(1)(c) of the CAR.
Mr Ashton also submitted that Regulation 269(1)(d) applied to the applicant and that he was not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a pilot licence. He referred to the High Court of Australia decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, and in particular what Mason CJ said at 349:
A licensee which is a fit and proper person in the context of s. 88(2)(b)(i) must have an appreciation of those responsibilities and must discharge them. Conversely, a licensee which lacks a proper appreciation of those responsibilities or does not discharge them is not, may be adjudged not to be, a fit and proper person.
While Bond’s case was decided in the context of a broadcast licence, the principle nevertheless remains applicable. Furthermore, as Mr Ashton submitted, fitness and propriety involves more than mere competence in the circumstances of the applicant’s case. He submitted that personal integrity as well as the need for a regulator to be able to have confidence in the licensee’s integrity form part of the consideration. I have no doubt that is correct. Furthermore, as Mr Ashton submitted, where the testing and licensing system is compromised, not even competence can be assured. There can be no question therefore that where a person is granted a licence although that person has not demonstrated competence, the safety of air navigation must be compromised. It follows I must find that the applicant is not a fit and proper person to hold an ATPL.
CONCLUSION
The consequence of my findings is that the applicant must be taken not to have passed the ATPL Cyber Exam and, in accordance with Regulation 298A(5), is not permitted to attempt any prescribed examination for a period of one year from the day on which he sat and passed that examination which was 21 March 2011. However, since more than one year has passed since that day, the applicant is permitted to sit the exam again at a time convenient to him.
In addition, because I have found that the grounds in Regulation 269(1)(c) and (d) exist, a period of suspension should be imposed on the applicant’s pilot licences. Given that on 11 September 2013 I granted the applicant a stay of the operation/implementation of CASA’s decision to suspend his pilot licences which was to remain in effect until this decision comes into operation or until further order, the suspension period should commence as from the date of this decision.
I affirm the decision made by CASA on 8 August 2013.
I certify that the preceding 213 (two hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Egon Fice
...[sgd].....................................................................
Associate
Dated 20 December 2013
Dates of hearing
4 November 2013; 22 November 2013
Counsel for the Applicant
Mr P Lithgow
Solicitors for the Applicant
Maitland Lawyers
Counsel for the Respondent
Mr R Ashton
Solicitors for the Respondent
Civil Aviation Safety Authority
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