Edwards and Civil Aviation Authority
[2002] AATA 412
•30 May 2002
CATCHWORDS – CIVIL AVIATION – confidentiality – Chief Pilot approval suspended – CASA investigations ongoing – whether same T documents should not be released to applicant until completion of investigations – confidentiality order made.
Administrative Appeals Tribunal Act 1975 ss. 3, 29, 34, 35, 35A, 37, 41 and 42B
Administrative Decisions (Judicial Review) Act 1977 s. 13
Migration Act 1958 ss. 35, 35AA, 36, 36A, 36B, 36C and 36D
Civil Aviation Act 1988 s. 28BA
Civil Aviation Orders ss. 82.0 and 82.1 (Part 82)
Civil Aviation Regulations 1988 r. 99A
Kanina Banner Pty Ltd and Minister for Health and Ageing [2002] AATA 169
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
DECISION AND REASONS FOR DECISION [2002] AATA 412
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2002/177
GENERAL ADMINISTRATIVE DIVISION )
ReHONE EDWARDS
Applicant
AndCIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 30 May, 2002
Place: Melbourne
Decision:Access to documents T6, T11-T15 and T17-T33 of the T documents be restricted to the respondent and its officers and to the members and staff of the Tribunal until midnight 22 May, 2002.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 21 February, 2002, the applicant, Mr Hone Pihama Edwards, applied for review of a decision of the respondent, the Civil Aviation Safety Authority ("CASA") dated 25 January, 2002. CASA's decision was to suspend the approval of Mr Edwards as a Chief Pilot of the Yugul Mangi Clan Development Pty Ltd ("the company") trading as Air Ngukurr pending the results of an investigation to be conducted forthwith. Mr Edwards had been appointed as Chief Pilot on 31 October, 2000.
On 13 April, 2002, CASA lodged the documents that it considered to be relevant to the review of its decision by the Tribunal. It did so pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") ("T documents"). At the same time, it applied for an order that access to a number of those documents be limited to the Tribunal and that they not be disclosed to Mr Edwards or his legal representatives until the completion of its investigations. Those investigations were directed to gathering information to assist CASA in deciding whether Mr Edwards' suspension as a Chief Pilot should be lifted or whether his approval should be cancelled. Mr Edwards opposed that application and it was heard on 18 April, 2002.
At the hearing, Mr Edwards was represented by his legal representative, Mr Wollerman, and CASA by its advocate, Mr Anastasi. In making oral submissions, Mr Wollerman relied on a statement by Ms Leah Mott, the Chief Executive Officer of Air Ngukurr, and an affidavit of Mr Edwards. Mr Anastasi made both oral and written submissions and relied on a statement of Mr Mark Haslam, an investigator employed by CASA, and various documents relating to the appointment of a Chief Pilot for Air Ngukurr.
At the conclusion of the hearing, I made the following order after giving oral reasons:
"1. access to documents T6, T11-T15 and T17-T33 of the T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 be restricted to the respondent and its officers and to the members and staff of the Tribunal until midnight 22 May, 2002; and
2.the respondent serve on the applicant documents T6, T11-T15 and T17-T33 on 23 May, 2002."
Mr Wollerman asked for written reasons for my decision. Although he has yet to make a written request as required by s. 13 of the Administrative Decisions (Judicial Review) Act1977, I now provide them.
THE ISSUE
The issue was whether an order should be made under s. 35(2) of the AAT Act to restrict access to T6, T11-15 and T17-33 of the T documents to the respondent and the members and staff of the Tribunal until 23 May, 2002.
CONSIDERATION
Mr Edwards' qualifications and experience
Mr Edwards stated that he has been employed by the company since November, 1998 and has worked for Air Ngukurr since it was established in October, 1999. He holds an Airline Transport Pilots licence with a command instrument rating and Grade 2 Instructors with multi engine training approval. He stated that he is employed as a line pilot. In December, 2001, the company purchased Wimray Air and operated both it and Air Ngukurr.
Lodgement of the T documents
In general terms and as it applies to this case, s. 37 of the AAT Act provides that CASA must lodge with the Tribunal a statement. In that statement, it must set out its reasons for reaching its decision. In those reasons, it must also set out the facts that it considers have been established and that are relevant to its decision and the evidence supporting its conclusions regarding the facts. At the same time and unless it relies on s. 37(1AF), it must lodge with the Tribunal a copy of every document or part of a document that is in its possession or under its control and that it considers to be relevant to the review of its decision by the Tribunal. The Tribunal is also able to require the decision-maker to produce other documents, whether described by class or otherwise, where it is of the opinion that those documents may be relevant to the review (s. 37(2)). The obligation to comply with s. 37 applies notwithstanding any rule of law relating to legal professional privilege or the public interest in relation to the production of documents.
Together, the statement and the documents are known as the "T documents". The time within which CASA was required to lodge its statement and documents was 28 days after it received notice of Mr Edwards' application and that notice was sent by the Tribunal on the day it received the application i.e. 21 February, 2002. It was also required to serve the T documents on Mr Edwards within that time (s. 37(1AE). CASA could have sought an extension of that time under s. 37(1) but it did not. By letters dated 28 March, 2002 and 4 April, 2002, Mr Wollerman enquired as to the whereabouts of the T documents. At a directions hearing held on 8 April, 2002, CASA was ordered to file and serve them on the applicant by 12 April, 2002. On 10 April, 2002, CASA applied to dismiss Mr Edwards' application for review pursuant to s. 42B of the AAT Act on the basis that it was futile. It also made an application for a direction under s. 35(2) that access to the T documents be restricted to the Tribunal and to CASA.
Section 35 of the AAT Act
Section 35(1) of the AAT Act provides that the hearing of a proceeding before the Tribunal shall be in public. A "proceeding" is defined in s. 3(1) and does not extend to conferences, which are held under s. 34 and which are confidential, but does extend to hearings through whatever media they are conducted (s. 35(1A) and 35A). Apart from the case in which an order is made under s. 35(2), there are limited exceptions to the general rule but they are not relevant in this case (s. 35(1AA), s. 35AA, ss. 36, 36A, 36B, 36C and 36D and, for example, Migration Act 1958, s. 501K).
Section 35(2) provides that the Tribunal may make certain orders that have the effect of restricting the public nature of the hearing. It may make such orders when it "… is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason…" (s. 35(2)). The types of orders that the Tribunal may make are:
"(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and
(aa)give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and
(b)give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(c)give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding." (s. 35(2))
In considering whether a hearing of a proceeding should be held in private or whether publication, or disclosure to some or all of the parties, of evidence given in, or received by, the Tribunal or of matter in documents lodged in the Tribunal (s. 35(3)) should be prohibited or restricted, the Tribunal is obliged to take as the basis of its consideration a fundamental principle. That is that it is desirable that the hearing be held in public and that all material be available both to the public and the parties. Although that principle is at the basis of its consideration, s. 35(3) recognises that it may not prevail in all cases. It provides that the Tribunal is required to give due regard to any reasons given to it as to why the hearing should be held in private or why publication or disclosure of the evidence or of matter in a document lodged with the Tribunal should be prohibited or restricted.
General principles relating to s. 35 of the AAT Act
In Kanina Banner Pty Ltd and Minister for Health and Ageing [2002] AATA 169, I set out general principles that have come to be applied in the Tribunal's exercising its powers under s. 35 in the context of whether a hearing should be held in public or in private and will not repeat them at length here. They are relevant in the more particular context of whether the evidence given, or material lodged, in the Tribunal by one party should be made available to the other and, in essence, the principles remain the same. It remains necessary to balance the competing interests between the desirability of the Tribunal's making evidence and material available to all parties at all stages of proceedings when it is available and in protecting other legitimate public interests that require that it be kept from one party.
The public interest in making the evidence and material available to an applicant is inherent in the very nature of the review conducted by the Tribunal. The review is conducted in order to determine the correct or preferable decision on the evidence and the material before the Tribunal and not, as in a court, to determine whether the decision was "… one which an administrator acting reasonably might have made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 (per Smithers J at 599 and per Bowen CJ and Deane JJ at 589). It is one of the necessary corollaries of that review that the Tribunal has access to all relevant evidence and material obtained by both parties whether it favours the case of the party holding it and whether it advances his or her cause or not. This is implicit in s. 37(1)(b) of the AAT Act requiring that the decision-maker must not only give a statement of reasons for his or her decision but also lodge with the Tribunal those documents in his or her control that he or she considers "to be relevant to the review of the decision". The documents are not confined to those thought by the decision-maker to be relevant to the making of his or her decision. They are not confined to those to which legal professional privilege does not apply and the obligation to produce them applies regardless of any public interest restricting their production. The principle of full disclosure of all material is carried through into the General Practice Direction which requires both parties to lodge, and to give to the other, Statements of Facts and Contentions, all relevant documents and witness statements prior to any hearing of the application and, indeed, while it is in the conference stage.
It is implicit in the requirement that the T documents be served on the other party that he or she have a full opportunity to consider not only the material upon which the decision-maker placed weight but to all of the information available to the decision-maker at that time. It enables the applicant for review to consider all of the relevant information, perhaps for the first time, in its full form. The applicant is no longer dependent upon a summary or reference that the decision-maker may have made to it in giving any reasons when he or she made the decision. Disclosure of the T documents may give the applicant his or her first opportunity to consider the merits of the decision against the weight of the material disclosed and the material that he or she has in her possession. Weighing that material, may lead the applicant to take a number of courses ranging from re-assessing his or her proceeding with the application altogether to building upon the documents with other documents and material to deciding that all relevant material is contained in the T documents but that the correct or preferable decision was not made. It may also lead the applicant to make an application under s. 41 of the AAT Act for a stay of the operation or implementation of the decision under review. More commonly, such an application is made at a far earlier stage and particularly when the application is lodged. To wait for the T documents is to delay that consideration by up to 35 days when allowance is made for the decision-maker to receive the notice of the application under s. 29. Clearly, then, the T documents are an important source of information to an applicant.
What is the context in which the interests must be balanced in this case?
In the context of this case where the proceeding (i.e. the application for review of CASA's decision (s. 3(1))) has yet to commence, the public interest is said to be founded in the fact that CASA is continuing its investigations into matters relevant to whether Mr Edwards is a suitable person to be a Chief Pilot. The outcome of those investigations will be relevant in CASA's determining whether Mr Edwards' approval as a Chief Pilot should be cancelled or whether his suspension should be lifted and he should be permitted to resume his position as Chief Pilot of Air Ngukurr.
That brings me to the provisions of the Civil Aviation Act 1988 ("the Act") and the Civil Aviation Orders ("CAO") relating to an air operator's certificate authorising charter operations and aerial work operations ("AOC"). Section 28BA(1)(b) of the Act provides that the AOC has effect subject to 'any conditions specified in the regulations or Civil Aviation Orders'. The conditions to which each AOC is subject are set out in s. 82.0 and 82.1 of Part 82 of the CAO (s. 82.1, paragraphs 1.2 and 1.3).
Paragraph 2.2 of s. 82.1 provides that "Each operator must establish a position of Chief Pilot and appoint a person to that position." It is a condition of the AOC that the operator will comply with the requirements set out in Appendix 1 to s. 82.0 (s. 5.1). Appendix 1 sets out the responsibilities of the Chief Pilot but, before he or she may carry them out, the Chief Pilot must be approved in writing by CASA after the operator has made a written application to that effect. The application must include the current licences, ratings and endorsements held by the person, the total flight time, total time as pilot in command and, where applicable, total instrument flight time and multi-engine aircraft experience and a comprehensive outline of his or her flying history, including experience in commercial operations. The responsibilities of a Chief Pilot must include the following unless CASA has give written dispensation.
Those responsibilities are:
"2.1 The Chief Pilot for an operator is to have control of all flight crew training and operational matters affecting the safety of the flying operations of the operator.
2.2The responsibilities of a Chief Pilot must, unless CASA otherwise specifies in writing, include the following responsibilities:
(a)ensuring that the operator's air operations are conducted in compliance with the Act, the Civil Aviation Regulations 1988, the Civil Aviation Regulations 1998 and the Civil Aviation Orders;
(b)arranging flight crew rosters;
(c)maintaining a record of licences, ratings, and route qualifications held by each flight crew member, including:
(i) validity; and
(ii) recency; and
(iii) type endorsements and any applicable licence restrictions;
(d)maintaining a system to record flight crew duty and flight times to ensure compliance with duty and flight time limitations, in accordance with Part 48 of the Orders;
(e)ensuring compliance with loading procedures specified for each aircraft type used by the operator and proper compilation of loading documents, including passenger and cargo manifests;
(f)monitoring operational standards, maintaining training records and supervising the training and checking of flight crew of the operator;
(g)conducting proficiency tests in the execution of emergency procedures and issuing certificates of proficiency as required by section 20.11;
(h)training flight crew in the acceptance and handling of dangerous goods as required by the Civil Aviation Regulations 1988 or the Orders;
(i)maintaining a complete and up-to-date reference library of operational documents as required by CASA for the class of operations conducted;
(j)allocating appropriate aircraft."
Paragraph 5 of Appendix 1 to section 82.0 specifies the circumstances in which a person will be approved as a Chief Pilot. Paragraph 5.1 provides:
"A person will not be approved as a Chief Pilot unless:
(a)in the opinion of CASA, he or she has maintained a satisfactory record in the conduct or management of flying operations; and
(b)before being approved as a Chief Pilot, the person has:
(i)been assessed by an examiner appointed by CASA as suitable to carry out the responsibilities of a Chief Pilot; and
(ii)passed an oral examination conducted by such an examiner covering the regulatory requirements for the safe conduct of commercial operations; and
(iii)passed a flight planning, loading and performance examination conducted by such an examiner based on the operator's most complex aircraft."
An approval may be given subject to conditions (paragraph 5.4) and remains in force either for the period specified in the approval or while the approved person maintains a satisfactory level of performance (paragraph 5.5). Paragraph 6.1 provides that:
"I spite of clause 5.5, an approval may be cancelled or suspended at any time if, in the opinion of CASA, the performance of the Chief Pilot is no longer of an acceptable standard."
CASA set out the basis on which it made its decision to suspend Mr Edwards' approval as a Chief Pilot in its letter to him of 25 January, 2001. That letter outlined the anecdotal evidence on which CASA based its decision:
"6. Further, a significant amount of the evidence indicates that you openly use your 'hire & fire' powers to coerce pilots into breaching aviation safety rules in order to minimise Yugul's operating costs.
7.The anecdotal evidence referred to in paragraph 5, above, includes:
(a)verbal aviation industry rumour;
(b)Internet aviation bulletin board PPRuNe professional pilots' rumour network;
(c)verbal aviation industry complaints;
(d)CASA safety reporting hotline complaints from concerned and reputable aviation industry sources;
(e)email complaints from concerned and reputable aviation industry sources;
(f)verbal incident reports from concerned and reputable locals pilots; and
(g)Alert Bulletins from the Australian Transport Safety Bureau's Confidential Aviation Incident Report system ('CAIR'), which appear to be from your pilots." (T documents, page 7)
The letter went on to set out 22 alleged breaches of the Civil Aviation Regulations 1988 ("the Regulations") and the Orders by referring to the provision and an outline of the alleged breaches. The alleged breaches were given in general terms without reference to particular incidents. So, for example, the alleged breach of r. 99A was that he failed to make mandatory aerodrome broadcasts but no date of the alleged breach was specified.
CASA's letter of 25 January, 2001 also gave examples of the evidence provided by witnesses:
"11. However, CASA is now in possession of evidence from persons who either participated in, or witnessed, many of the events which gave rise to the allegations contained in the anecdotal evidence described above and which corroborates many of those reports. Examples of the evidence provided by the witnesses include the following allegations:
(a)On 25 May 2001 the pilot-in-command of Cessna 210, registration VH-SYT, experienced a problem with the throttle that resulted in the engine stopping during the landing at Ngukurr. When he was later tasked by you to fly to Tindal he advised you of the throttle problem and that he would not be able to perform the flight because the aircraft was considered unairworthy. You became angry and ordered him to do the flight, which he refused. After a considerable argument with him you arranged for another pilot to perform the flight to Tindal in the apparently unairworthy aircraft.
(b)Last year, when asked to perform a flight from Ngukurr to Darwin by you a pilot advised you he would exceed flight and duty time limitations if he carried out the flight. You responded that he could still perform the flight but that you would make all the entries in the maintenance release, trip record and flight and duty records in your name to avoid recording any breach of the rules. The witness emphasised that 'You won't find anything in the records because Honi doesn't write it down'.
(c)On 29 August 2001, when tasked by you to perform a flight in Cessna 210, registration VH-BEC, from Borroloola to Groote Eylandt with 5 passengers, the pilot told you that he had a problem because he only had 4 life jackets. You told him he had no choice other than to perform the flight without life jackets for all occupants if he wanted to keep his job. The pilot then refused your demand and you became angry and abusive.
(d)In April or May 2001 you conducted a flight at night in a Chieftain from Darwin to Ngukurr. Despite being advised by your pilots, when you rang for a weather report, that the weather was unsuitable you told them you were coming, regardless of the weather, because the aircraft was required in Ngukurr for a charter the next day. After making several unsuccessful approaches because you couldn't see the runway you asked your pilots to help. You instructed them to watch for your lights and advise you when you were over the runway threshold so that its exact position could be entered into the aircraft's GPS navigation system. You advised that you would descend in 100 foot increments on each subsequent approach until you could see the runway. After 3 more approaches you successfully landed from a ceiling of around 400 feet and in heavy rain.
12.CASA became aware of a defect that recently caused Cessna 210, registration VH-SYT, to become unairworthy at Ngukurr. Available evidence also indicated that you would probably coerce a pilot to fly it to Darwin for repair to minimise the cost of the repair. To prevent this likely serious risk to air safety, which could have possibly resulted in injury or loss of life, CASA provided you with immediate written notice of its knowledge of the unairworthy state of this aircraft and recommended appropriate maintenance prior to any further flight.
13.CASA has been concerned about the standard of your performance as Chief Pilot of Yugul since December 1999, but has not had sufficient evidence to substantiate the serious allegations made against you. However, witnesses have now come forward with evidence which appears to substantiate these allegations and if true constitute a serious risk to air safety if you continue as Chief Pilot." (T documents, pages 9-10)
In his statement, Mr Haslam said that he had been asked to conduct an investigation into alleged breaches of the Act and the Regulations. On 30 and 31 January, 2002, he had travelled to Darwin to obtain written statements from 4 pilots then employed by Air Ngukurr. The employment of two of the pilots, Mr Hussein Mroue and Mr Sergio Novelli, was terminated shortly after they had signed their statements. Air Nugukurr had told him that their employment was terminated on disciplinary grounds and the pilots had told him that the reason for the termination was their having made the statements to CASA. The remaining two pilots, Mr Ben Vandenburg and Mr Steve Krizmancic, declined to sign their statements. Mr Haslam understood from them that they were concerned about the ramifications for their employment if they were to sign them. Mr Vandenburg signed his statement on 8 March, 2002 after he had resigned from Air Ngukurr in circumstances, he conveyed to Mr Haslam, in which he felt he was compelled to resign. In his affidavit, Mr Edwards denied speaking to any of the pilots referred to in this paragraph or to any other pilots about the investigation. He also stated that Mr Mroue and Mr Novelli had both been warned on three occasions about their unsatisfactory performance.
In the meantime, Mr Haslam had received correspondence from Mr Len Veger, who is a CASA flying operations inspector based in Darwin. That information conveyed concerns raised by Mr Rowan Dougal who was then the Chief Pilot of Air Ngukurr. It raised issues relating to Mr Edwards' alleged continued involvement in the operation and management of Air Ngukurr despite his no longer being Chief Pilot, Mr Dougal's then holding that position and Ms Mott's directing Mr Edwards that he should totally exclude himself from any and all operational matters. These allegations were discussed by CASA officers with Mr Dougal and Ms Mott. Those discussions took place on 12 and 15 March, 2002.
Mr Dougal resigned as Chief Pilot on 12 March, 2002 and told Mr Veger that Mr Edwards was the main cause of his having done so. While Mr Dougal had been absent attending to family matters, it appeared to him that Mr Edwards had assumed control of Air Ngukurr once more. That was despite the appointment of another Chief Pilot, Mr Noel Bleakley, but Mr Dougal had stated to Mr Veger that Mr Bleakley probably had not had the strength of character to oppose Mr Edwards. Mr Veger stated in a note on 15 March, 2002 that Ms Mott had been briefed in general terms about CASA's investigation into Air Ngukurr and Mr Edwards' role as Chief Pilot. Ms Mott, Mr Veger had recorded, had stated that Mr Edwards would only be employed in the role of a line pilot and would have no authority in the conduct of operations. Mr Edwards, she said, would never again be employed as Air Ngukurr's Chief Pilot. Ms Mott expressed surprise that the pilots had not approached her with their allegations against Mr Edwards. She stated that she wished to proceed with Mr Bleakley's appointment.
Mr Haslam said that his inquiries continued throughout February and March, 2002 when he spoke to "numerous persons" and obtained documentary evidence including Mr Edwards' pilot log book. Mr Hussein Mroue signed a further statement in April, 2002.
Mr Haslam, whose statement was dated 15 April, 2002, estimated that he needed a further 4 to 5 weeks to complete his investigation. It was necessary for him to corroborate the statements he had already received from former pilots of Air Ngukurr by making further enquiries of persons and obtaining further documentation. Mr Haslam said in his statement that he was:
"… concerned that if the applicant becomes aware of the precise nature of the allegations detailed in the witness statements and elsewhere in the section 37 documents, before the investigation is completed, that either persons will decline to provide statements to, or assist, CASA.
16.I also consider there is a possibility that it will be difficult to obtain documentary evidence, especially if it is currently located at Air Ngukurr, having regard to the fact that the applicant is still employed there and apparently still retains considerable influence over how the operations are conducted and managed. I also consider there is a possibility the applicant may falsify records having regard to the nature of the allegations made against the applicant."
Mr Edwards said that he had not received any complaints from any pilots regarding his running of the office. He was confident that the operations of Air Ngukurr were within the Act, Regulations and Orders. Mr Edwards said that he had asked CASA on a number of occasions to conduct an audit on the operations of Air Ngukurr to ensure that the rumours in the months leading up to his suspension were unsubstantiated. Two audits were conducted by CASA in 2001, Mr Edwards said, and nothing unsatisfactory or of concern was revealed.
Balancing the public interests
While disclosure of all relevant evidence and material to the Tribunal and to all of the parties is at the foundation of s. 35(1) of the Act, as Brennan J said in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247:
"… the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant – they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal's powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.
An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must be a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described by s 36 (though in the last case, it is relevant that the Attorney-General has not given a certificate under that section). Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one. Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s 35(2) authorizes it to remove those impediments to the receipt of information. Yet the power is conferred in order to do justice in exceptional cases – that is to say, where 'the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public' cannot be applied. Some of these exceptional cases are statutorily defined: see, for example, the Insurance Act 1973 s 63(14)." (pages 272-273)
Keeping evidence from Mr Edwards when it is relevant to the review of the decision preventing him from holding a position as Chief Pilot is not a step that I have taken lightly. The need to do so arises from the fact that his approval as Chief Pilot was suspended at a time when CASA had not completed its investigations. Clearly, CASA considered that it had sufficient evidentiary material on which to make relevant findings of fact and to justify its suspending the approval despite its not having completed its investigations. Having regard to the evidence in the documents that are the subject of the confidentiality order, I have concluded that the investigation would be prejudiced were it to be revealed to Mr Edwards at this stage. That is so even though I note that Mr Edwards has denied that he has been involved in any breach of the Act, Regulations or Orders or that he has been engaged in any improper conduct. At the heart of some of the allegations is the suggestion that Mr Edwards has exerted his will upon others who may not be able to withstand him. Ultimately, this suggestion may prove to be incorrectly made but, while it has some currency, the integrity of the investigation should be protected by his not being made aware of the precise details of the evidence.
I have also taken into account the information that is already available to Mr Edwards. It was set out in CASA's letter to him of 25 January, 2002. It gives details of the nature of the allegations made against him. Certainly, it is not sufficient for him to prepare a detailed case as he would want for the hearing of the application. It is sufficient, however, to give him a basis upon which he can make a decision whether or not to apply for an order under s. 41 of the AAT Act staying the operation or implementation of the decision.
On balance, I concluded that preservation of the integrity requires that confidentiality of the evidence be maintained until 23 May, 2002. That will not prejudice Mr Edwards in exercising his right under s. 41 of the AAT Act or in preparing his case in the short term. The evidence cannot be kept from him indefinitely for he is entitled to have access to it in order to obtain advice and to consider his position. I have concluded that a proper balance of the interests of Mr Edwards and of CASA is that he be given access to the documents on 23 May, 2002. Consequently, I made the order set out above.
I certify that the thirty-two preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President),Signed: …………………………………..
Paul Paczkowski AssociateDates of Hearing 18 April, 2002
Date of Decision 30 May, 2002
Counsel for the Applicant Mr Wollerman
Solicitor for the Applicant Wollerman Shacklock
Counsel for the Respondent Mr Anastasi
Solicitor for the Respondent Departmental Advocate
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