Hevi Lift v Civil Aviation Safety Authority
[1997] FCA 1308
•14 OCTOBER 1997
CATCHWORDS
ADMINISTRATIVE LAW - review of administrative decision - legislative charter to ensure safety of aircraft - balancing overseas and domestic regulations
CIVIL AVIATION - legislative scheme governing the operation of foreign aircraft on domestic commercial flights - requirements to satisfy CASA of airworthiness - limits on CASA’s power to require proof of airworthiness - Australia’s obligations under Convention on International Civil Aviation - recognition of foreign aviation authority certification - sufficiency of Annex 8 statements as to airworthiness
Judiciary Act 1903 (Cth) s 39B
Air Navigation Act 1920 (Cth) s 3A
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Civil Aviation Act 1988 (Cth) ss 11, 28, 28A
Convention on International Civil Aviation (Chicago Convention) 7 December 1994
Lindner v Wright [1976] 14 ALR 105
HEVI LIFT -v- CIVIL AVIATION SAFETY AUTHORITY
No. NG 605 of 1997
EINFELD J
SYDNEY
14 OCTOBER 1997
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No.NG605 OF 1997
GENERAL DIVISION )
Between:HEVI LIFT (PNG) PTY LIMITED
Applicant
And:CIVIL AVIATION SAFETY AUTHORITY
Respondent
MINUTE OF ORDERS
The Court declares that:
there is nothing in section 28A(1)(f) of the Civil Aviation Act 1988 (Cth) as would permit the respondent to require the applicant to establish that its Kamov KA32A helicopter warrants or requires to have a Certificate of Type Approval by the respondent as to its airworthiness
section 28A(1)(f) also does not permit the respondent to require the applicant to submit proof of the underlying design and structural integrity of its Kamov KA32A helicopter other than a statement by the Russian civil aviation authority that it complies with the standards of airworthiness prescribed by Annex 8 of the Chicago Convention or such other standards as the respondent may direct
The Court orders that:
the decision of the respondent, contained in a letter to the applicant dated 21 July 1997, refusing the issue of an Air Operator’s Certificate for the Kamov KA32A helicopter, be set aside
the balance of the application and application number NG 553 of 1997, including costs, be adjourned for further argument
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
EINFELD J
SYDNEY
14 OCTOBER 1997
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 605 of 1997
GENERAL DIVISION )
Between:HEVI LIFT (PNG) PTY LIMITED
Applicant
And:CIVIL AVIATION SAFETY AUTHORITY
Respondent
REASONS FOR JUDGMENT
EINFELD J SYDNEY 14 OCTOBER 1997
Introduction
Hevi Lift (PNG) Pty Limited (Hevi Lift) has applied to set aside a decision of the Civil Aviation Safety Authority (CASA) made on 21 July 1997 to refuse it an Air Operator’s Certificate (AOC) under sections 28 and 28A of the Civil Aviation Act 1988 (Cth) to conduct aerial work operations using a Kamov KA32A helicopter bearing registration number RA31586 (the KA32A).
Hevi Lift, which is incorporated in Papua New Guinea, conducts commercial operations throughout the world using both fixed-wing aircraft and helicopters. In Australia those operations are mainly confined to carrying external loads and performing emergency services work, including fire fighting activities.The KA32A is a Russian-built helicopter which is, according to the evidence, the only such craft in Australia capable of lifting and carrying a load of up to 5 tonnes or 5000 litres of water for fire fighting purposes. It is a civilian model of a similar military aircraft, the Kamov KA32C.
Between 1992 and 1995 Hevi Lift obtained permission from CASA’s predecessor, the Civil Aviation Authority, to use a KA32C for several operations in Australia as a temporary measure while it awaited the delivery of the civilian model. The KA32A arrived in May 1995 and since that time Hevi Lift has operated it under a series of temporary AOCs pending an application for and a decision on a more permanent authority.
On 23 October 1996 Hevi Lift applied for an AOC for the KA32A for a period of 12 months (the application). After correspondence with CASA, a further temporary AOC was issued for the period 26 February to 22 May 1997. Further correspondence ensued regarding an offer by CASA to consider the extension of the AOC for a further six months pending a meeting between CASA and Hevi Lift and a visit by certain Russian technical personnel. This meeting took place on 2 May and was followed on 19 May by an inspection of the KA32A by the Russian personnel with an officer of CASA present. Thereafter Hevi Lift, who was apparently under the impression that an AOC would definitely be issued subject only to the question of its duration, wrote to CASA on 23 May seeking the expedition of their application. A raft of correspondence followed between the parties addressing the concerns and delays which were attending CASA’s deliberations.
On 14 July 1997, on the basis that CASA had yet to make a formal decision either to grant or refuse the issue of the AOC, Hevi Lift applied to this Court for relief from the failure to make a decision, effectively treating the situation as a constructive refusal of the application. At the Court’s urging that the making of a decision would aid a speedy resolution of the matter, CASA then made a decision to refuse Hevi Lift’s application (the decision) and notified the company by letter dated 21 July 1997 setting out its reasons. Hevi Lift was then granted leave to file an additional application seeking a review of the decision, pursuant to section 5 of the Administrative Decisions (Judicial Review) Act 1977 or section 39B of the Judiciary Act 1903, and the matter was set down for determination on 11 August 1997. Meanwhile on 5 August, an application by CASA to transfer the matter to the Administrative Appeals Tribunal for a merits hearing was dismissed.
The hearings of both the original and the additional applications were expedited, one of the major factors contributing to urgency being that without an AOC Hevi Lift is unable to operate the KA32A in Australia. The evidence suggested that Hevi Lift has entered several contracts predicated on the particular use of the KA32A’s heavy lifting capabilities. These contracts cannot be carried out if an AOC is not issued. When these proceedings began, it was clear that CASA was reticent about making a formal decision for which it would have to proffer reasons. It had in fact issued a letter in very similar terms to what is now the decision on the application but specifically stated that it was not refusing the application at that stage. Nevertheless it was not prepared to issue the AOC which had been applied for. Hevi Lift was therefore left in the invidious position of not being able to operate its helicopter while at the same time not being able to determine what it had to do in order to have its application for an AOC granted.
The legislative scheme
Civil aviation in Australia is governed by the Civil Aviation Act 1988, the Air Navigation Act 1920, and the Convention on International Civil Aviation done at Chicago on 7 December 1944, including the Protocols and Annexes thereto (the Chicago Convention). The English text of the Chicago Convention is set out in Schedule 1 to the Air Navigation Act 1920 and section 3A of that Act expressly approves the Convention’s ratification by Australia. CASA is the administrative authority established to oversee this scheme. Section 11 of the Civil Aviation Act 1988 provides:
11.CASA shall perform its functions in a manner consistent with the obligations of Australia under the Chicago Convention and any other agreement between Australia and any other country or countries relating to the safety of air navigation.
In order for aircraft to operate in Australia, an AOC is generally required. In some cases special licences may be granted instead of an AOC, one particular example being for the operation of international airlines servicing Australia. However, Hevi Lift’s proposed operation of the KA32A requires an AOC as governed by Division 2 of the Civil Aviation Act, including section 27:
(1)CASA may issue AOCs for the purposes of its functions.
(2)Except as authorised by an AOC, or by a permission under section 27A:
...
(b)an aircraft shall not operate in Australian territory;
...
The issue of an AOC by CASA of the type applied for in this case is governed by section 28(1) of that Act:
If a person applies to CASA for an AOC, CASA must issue the AOC if, and only if:
(a)CASA is satisfied that the applicant has complied with, or is capable of complying with, the provisions of this Act, the regulations and the Civil Aviation Orders, that relate to safety, including provisions about the competence of persons to do anything that would be covered by the AOC; and
(b)CASA is satisfied about the following matters in relation to the applicant’s organisation:
(i)the organisation is suitable to ensure that the AOC operations can be conducted or carried out safely, having regard to the nature of the AOC operations;
(ii)the organisation’s chain of command is appropriate to ensure that the AOC operations can be conducted or carried out safely;
(iii)the organisation has a sufficient number of suitably qualified and competent employees to conduct or carry out the AOC operations safely;
(iv)key personnel in the organisation have appropriate experience in air operations to conduct or to carry out the AOC operations safely;
(v)the facilities of the organisation are sufficient to enable the AOC operations to be conducted or carried out safely;
(vi)the organisation has suitable procedures and practices to control the organisation and ensure that the AOC operations can be conducted or carried out safely;
(vii)if CASA requires particulars of licences held by flight crew members of the organisation - the authorisations conferred by the licences are appropriate, having regard tot he nature of the AOC operations; and
(c)if the AOC would authorise the operation of a foreign registered aircraft on domestic commercial flights - CASA is also satisfied that the additional conditions in subsection 27AE(1) have been met.
Hevi Lift’s intention being to use the KA32A for domestic commercial purposes, it was agreed by the parties that the reference in subsection (1)(c) to section 27AE was in fact a printing or typographical error for section 28A. This error is made obvious by the heading to section 28A (which immediately follows section 28): “Additional conditions for issue of AOC in relation to certain foreign registered aircraft”, and by the reference in the opening sentence of section 28A(1) to section 28(1)(c). In the circumstances, the Court will exercise its power to read the legislation so as to rectify the obvious accidental error: Lindner v Wright [1976] 14 ALR 105.
Section 28A(1) provides:
The additional conditions of which CASA must be satisfied for the purposes of paragraph 28(1)(c) are:
(a)that CASA has entered into agreements with:
(i)the authority responsible for regulating civil aviation in the country where the aircraft is registered; and
(ii)if, when the application for an AOC is made, the aircraft is operating in another country under an air operator’s certificate, or a document to substantially the same effect, issued by the authority responsible for regulating civil regulation in that other country (a foreign certificate) - the body that issued the foreign certificate; and
(b)that each agreement sets out the areas of responsibility of the parties to the agreement in relation to the supervision of flight operations, the maintenance, and the airworthiness, of aircraft covered by the agreement; and
(c)that the applicant has informed CASA:
(i)of the aircraft’s type, serial number and registration marks; and
(ii)of the country where the aircraft is registered; and
(iii)of the name and address of the person in whose name the aircraft is registered; and
(d)that the applicant has informed CASA:
(i)of the age and total time-in-service of the aircraft; and
(ii)of the country in which any person who operated the aircraft in the period of one year immediately before the application for the AOC had his or her principal place of business; and
(iii)of the country or countries in which maintenance, other than daily maintenance, was carried out on the aircraft during that year; and
(e)that the applicant has given CASA a copy of either:
(i)the certificate of airworthiness of the aircraft; or
(ii)a document to substantially the same effect as such a certificate ;
that was issued by the authority responsible for regulating civil aviation in the country where the aircraft is registered; and
(f)that the applicant has given CASA a statement that the aircraft complies with the airworthiness requirements of Annex 8 of the Chicago Convention or with such airworthiness standard as CASA directs; and
(g)if the aircraft is leased - that the applicant has given CASA:
(i)the name and address of the person responsible for operational control of the aircraft under the lease agreement (whether or not that person is the applicant); and
(ii)a statement signed by that person to the effect that that person, together with the other parties to the lease agreement, understand their respective responsibilities under the applicable regulations; and
(h)if the aircraft is leased - that the applicant for the AOC has given CASA a description of the lease provisions.
Annex 8 of the Chicago Convention provides for a certificate of airworthiness of an aircraft to be provided by the civil aviation authority of the manufacturing country which certifies the aircraft’s compliance with prescribed airworthiness standards (Annex 8 statement). The foreword to the Annex states that these standards constitute the minimum requirements for international recognition of airworthiness of aircraft by signatories:
... the objective of international airworthiness Standards is to define, for application by the competent national authorities, the minimum level of airworthiness constituting the international basis for recognition by States...of certificates of airworthiness ...
The intention of Annex 8 and of section 28A(1) is that the provision of this certification by an applicant for an AOC allows CASA to be satisfied of the airworthiness of the aircraft in question.
The Australian legislative scheme thus envisages a division of responsibilities between CASA and foreign equivalents in respect of foreign aircraft in Australia. Section 28A(1) expressly recognises the role of the relevant foreign authority in facilitating their operation. Paragraph (a) establishes the requirement that there must be an agreement in existence between such a foreign authority and CASA. Paragraph (e) requires that documents to be supplied to CASA in satisfaction of the subsection must have been issued by that foreign authority. Similarly paragraph (f) requires a statement from that authority that the aircraft complies with a specified set of airworthiness standards, set either by Annex 8 or CASA. If CASA wishes to set its own standards for particular aircraft, it must obviously decide and prescribe what they are and notify the relevant parties. Either way, to give efficacy to paragraph (f), the statement on the airworthiness of a particular aircraft must also have been issued by the relevant foreign authority. The alternative, to allow an applicant for an AOC to declare that its own aircraft is airworthy by simply issuing a statement to that effect, is most unlikely to have been the legislative intention. By referring to documents and statements issued by foreign authorities, paragraphs (e) and (f) envisage their acceptance by CASA.
The decision
The part of the letter from CASA to Hevi Lift of 21 July 1997 which set out its reasons for refusing the AOC was in the following terms:
I have decided not to issue a further AOC in response to Hevi Lift’s 23 October 1996 application. My reasons for that decision are:
1.On the basis of the information available to me at this time, I am not satisfied that Hevi Lift has demonstrated that the Kamov KA32A aircraft does, or is able to, comply with a set of airworthiness standards sufficient to warrant:
·the issue of a Certificate of Type Approval by CASA pursuant to the provisions of regulation 22 of the Civil Aviation Regulations; or
·the automatic issue of a Certificate of Type Approval by CASA, pursuant to the provisions of regulation 22A of the Civil Aviation Regulations, on the basis of the prior issue of an equivalent certification by one of the five competent authorities recognised by CASA under regulation 20B of the Civil Aviation Regulations.
2.Whilst it is not an express requirement for the issue of an AOC under ss 27, 28 and 28A of the Civil Aviation Act that an aircraft to be covered by such an AOC must hold a Certificate of Type Approval issued by CASA under CAR 22 or 22A (or an equivalent certification issued by an authority recognised by CASA under CAR 20B), in the absence of the kind of evidence that would support the issue of such a certificate to Kamov KA32A aircraft, I am not satisfied that Hevi Lift complies or is able to comply with the airworthiness provisions of the Civil Aviation Act, Regulations and Orders applicable to aircraft RA 31586.
3.In this instance, Hevi Lift has not produced evidence indicative of the airworthiness standards applied by the Russian Authority to the Kamov KA32A aircraft, nor has Hevi Lift provided CASA with evidence indicative of the rigour of the Russian certification process or the level of quality control governing that process. This is not to say that such standards as have been applied to the subject aircraft by the Russian Authority are necessarily deficient. It is not CASA’s responsibility, however, to show that there are, or may be, reasons to doubt the airworthiness of the aircraft. Rather, under section 28 of the Civil Aviation Act it is the applicant’s responsibility to come forward with evidence sufficient to satisfy CASA that the aircraft was manufactured to, and continues to comply with, acceptable airworthiness standards.
4.Inspection of aircraft RA 31586 by representatives of the Russian Authority, like the one that was carried out on 19 May 1997, can only establish generally that the aircraft is serviceable at the time of the inspection. Such inspections can do little to establish that the aircraft was manufactured to, and continues to satisfy, minimum standards of safety in respect of it structural integrity and continuing airworthiness. For obvious reasons, invocation of the ‘safe history’ of a particular aircraft’s operation does nothing to satisfy this requirement.
5.Further to this matter, the CASA Operations and Airworthiness officers who attended the inspection of aircraft RA 31586 on 19 May 1997 have advised me that the representatives of the Russian Authority who conducted that inspection were unable even to identify which, if any, of the Russian equivalent to airworthiness directives applied, to say nothing of whether or not there was satisfactory evidence of compliance with those directives. This, of itself, raises doubts as to the continuing airworthiness of aircraft RA 31586.
6.At paragraph 6 of your letter to the Director of Aviation Safety dated 26 May 1997, you refer to what you describe as CASA’s “acceptance” of the airworthiness of KA32A aircraft. In support of this contention, you make further reference to a letter, dated 14 January 1994, from Mr C. Torkington, then Manager of Airworthiness and Operations, Directorate of Aviation Safety Regulation, in the former Civil Aviation Authority, which letter, you claim, “confirmed” CASA’s acceptance of an ‘Annex 8 statement’ as determinative of all relevant airworthiness considerations. This claim is untenable on two grounds:
First I am advised that the letter in question was actually prepared in connection with a view to the consideration of an approval for the operation of a KA32A aircraft on a short term basis only, whereas the application involved here effectively contemplates the regularisation of domestic commercial operations utilising that aircraft. It is one thing to rely on stated satisfaction of Annex 8 standards in relation to aircraft that are transiting through Australian territory, but it is quite another to suggest that such a statement might supplant the full panoply of domestic airworthiness requirements.
Secondly, you will be aware that, since 1994, the safety regulation of civil air operations in Australia has been the subject of a searching and thoroughgoing critical analysis, resulting in the creation of a new regulatory authority and some rather fundamental changes to the legislation under which AOC’s are issued and may continue to be held. In light of these developments, and without necessarily impugning the integrity of the judgments made in respect of the domestic operation of KA32A aircraft in years past, I do not believe I am, or necessarily would be, constrained in every case by the import of operational determinations made prior to the establishment of CASA and enactment of the legislation under which your client’s AOC application must be considered.
The decision makes clear that despite this requirement not being one imposed by the Act, CASA relied on Hevi Lift’s failure to satisfy it that the aircraft complies with a set of airworthiness standards sufficient to warrant the issue of a Certificate of Type Approval by CASA pursuant to either Regulation 22 or 22A of the Civil Aviation Regulations (CAR).
A Certificate of Type Approval, as the name suggests, can be granted to certain classes of aircraft by CASA and, once issued, certifies the adequate quality of that aircraft’s underlying design and manufacture. As I understand the position, the issue of a type certificate is certification that an aeronautical product meets the airworthiness standards applicable to it for the purposes of registration in Australia.
Under CAR 22 CASA can undertake to certify a type of aircraft itself. This is apparently an extremely time-consuming, costly and technically difficult exercise. Under CAR 22A, CASA automatically accepts, for its own purposes, a Certificate of Type Approval from “recognised authorities”. At the present time five countries have been designated as recognised authorities, including the United States of America, France and the Netherlands.
Not one of these five authorities has yet granted a Certificate of Type Approval for the KA32A, and CASA has refused to undertake its own certification. The Russian aviation authority has certified that the KA32A complies with airworthiness standards equivalent to the relevant standards followed by the United States of America, but CASA refuses to accept a type certification from Russia in this case or perhaps at all. The impact of the decision of CASA to refuse an AOC for the stated reasons was therefore to force Hevi Lift into a position where it had either to provide a type certification from one of the five recognised authorities which is not possible at present because it does not exist, or produce evidence that would satisfy CASA that a type certification would be granted by CASA if there was an application to register the helicopter in Australia. If a statement by the Russian authority to that effect is not acceptable to or not enough for CASA, that requirement is also not presently achievable.
Hevi Lift attacked the decision as unsatisfactory for at least two reasons. Firstly, as the decision itself conceded, neither a type certificate nor Australian registration has any relevance under the legislation to an application for the issue of an AOC. No application has been made for registration of the KA32A in Australia. Secondly, CASA did not specify what set of airworthiness standards would be sufficient to discharge the onus it sought to put on Hevi Lift. Although it did state that Hevi Lift could approach it in order to discuss what was required, it was not until the hearing of this matter that it became clear that CASA was of the view that section 28A(1)(f) gives it a residual discretion to order compliance with any set of airworthiness standards it nominates. In this case it stated that it was not satisfied with the underlying design and manufacturing standards applied in Russia, and that although those standards may not necessarily be deficient, and despite the KA32A’s abundant history of safe operation, it is the responsibility of Hevi Lift, indeed apparently of every applicant for an AOC, to satisfy CASA of the particular aircraft’s airworthiness.
Moreover, only at the hearing did CASA identify that it required compliance with any one of three sets of airworthiness standards, two of which are American and the third British. One of the U.S. sets of standards (Exhibit A2) was the standard certified by the Russian authority to be met by the KA32A. It consists of some 135 pages of technical specifications and requirements, yet it was not indicated with which, if any, part of the specified standards the KA32A did not comply, or with which standard(s) Hevi Lift had to demonstrate compliance. Rather, CASA stated that the onus was on Hevi Lift to show CASA that the aircraft did comply, and would continue to comply, with the standards, presumably all the standards, as identified, although it was not stated how this requirement could in practice be achieved.
Hevi Lift submitted that this method of decision-making is evasive, obfuscatory and singularly arbitrary, despite the allegedly comprehensive and thorough overhaul of Australian civil aviation administration recently undertaken. It is certainly unfortunate that CASA’s position was not clarified until the hearing of this matter had begun. If followed generally, it would render the Chicago Convention a useless treaty to state parties engaged in aircraft manufacture and registration other than the ‘big five’, and the Australian legislative scheme quite meaningless and unworkable.
The dispute
These defects in the decision made it very difficult to determine whether the parties were actually at issue. However, after lengthy argument, one major or central question for determination arose as to whether the provision of an Annex 8 statement from a foreign authority must satisfy CASA in respect of the requirement in section 28A(1)(f), such that a declaration in those terms by this Court would necessarily result in an AOC being granted to Hevi Lift in respect of the KA32A. CASA did not dispute that Hevi Lift has complied with the other requirements of sections 28 and 28A including, in the case of section 28A(1)(e), the provision of the certificate of airworthiness issued by the appropriate Russian civil aviation authority to which earlier reference was made. Hevi Lift has also provided, in what it claims satisfies paragraph (f), an Annex 8 statement by the appropriate Russian authority that the KA32A complies with the airworthiness requirements of the Chicago Convention.
It would therefore be open to CASA to be satisfied that the provisions of the Act have been, and will continue to be, complied with. However, by refusing to issue the AOC based on that material, CASA has asserted that an Annex 8 statement is not necessarily conclusive proof, within the Australian legislative framework, of an aircraft’s underlying airworthiness for its purposes, and that in this case it is not proof of anything relevant to the issue of an AOC at all.
Safety and airworthiness
The fundamental concern in the decision was safety which CASA now sees as its primary focus. This focus is reflected not only in the Authority’s changed name, but also in the express mandate set out in the long title to the Act:
An Act to establish a Civil Aviation Safety Authority with functions relating to civil aviation, in particular the safety of civil aviation, and for related purposes.
Yet CASA was having difficulty giving effect to its concerns over safety within the scheme of the Act and Regulations, and could not particularise its concerns by reference to the legislation. It therefore decided on a course of action which placed the onus on Hevi Lift to satisfy unspecified requirements as to the ‘structural integrity and continuing airworthiness’ of the KA32A, and sought to justify this position during the hearing by asserting that a precedent would be established if the legislation obliged CASA to grant an AOC to an applicant on provision of an Annex 8 statement. I shall return to this argument later. Presumably this has been the position in Australia ever since the Convention was brought into operation here. It has also apparently governed the position of CASA and its predecessor towards Hevi Lift since it first started to use the KA32C and the KA32A in Australia more than five years ago.
Other considerations
A strict attitude to safety on the part of CASA is both necessary and admirable. However, there are also other interests that must be considered in the context of civil aviation. The first is the interest of an applicant for an AOC in having the law properly applied including having the reasons for any refusal of its application clearly set out so that it might address any safety concerns directly.
A second important interest is the operational efficacy of foreign commercial aircraft in Australia. It is not necessary to detail, because it is obvious, the wide variety of commercial applications that a helicopter with the properties of the KA32A might have in this country. The economic and social interests in allowing such operations are manifest. A balance must therefore be struck between CASA’s concerns over safety and the facilitation of commercial aviation serving public purposes or interests. This task falls primarily to the legislature rather than CASA or the Court and the intention of Parliament is revealed in the legislative scheme which has been enacted.
Chicago Convention
There can be no doubt about the status of the Chicago Convention within that scheme. Both the Air Navigation Act and the Civil Aviation Act implement Australia’s obligations under the Convention, such that it is clear that any construction of Australian airworthiness requirements, for example in sections 28 and 28A of the Civil Aviation Act, must be undertaken consistently with the Convention.
Firstly, the Convention stipulates that all aircraft involved in civil aviation must be registered. Article 18 provides:
An aircraft cannot be validly registered in more than one state...
The Convention then allocates responsibility for certifying the airworthiness of an aircraft to the country of registration in Article 31:
Every aircraft engaged in international aviation shall be provided with a certificate of airworthiness issued or rendered valid by the State in which it is registered.
The Convention expressly recognises in Article 33 that signatories to the Convention are required to give effect to the certifications of other signatories:
Certificates of airworthiness and certificates of competency and licences issued or rendered valid by the contracting State in which the aircraft is registered, shall be recognised as valid by the other contracting States, provided that the requirements under which such certificates or licences were issued or rendered valid are equal to or above the minimum standards which may be established from time to time pursuant to this Convention.
CASA submitted that the Convention was not intended to curb the sovereignty of signatory states and that all nations retained their powers to govern civil aviation within their own territories. CASA submitted that these intentions were encapsulated in Article 11:
Subject to the provisions of this Convention, the laws and regulations of a contracting State...shall be applied to the aircraft of all contracting States without distinction as to nationality...
which it stated had to be reconciled with Article 33. In my opinion, Article 11 supports Hevi Lift’s contention that under the scheme governing civil aviation in Australia, CASA cannot impose different standards on the KA32A simply by virtue of its country of manufacture. Parliament obviously believes that Australia derives substantial benefits from the Convention; it must therefore be taken to have determined that we must abide the obligations it imposes on us without discrimination.
Local control of air safety
CASA asserted that acceptance of an Annex 8 statement as conclusive of a foreign aircraft’s airworthiness would result in a free-for-all, allowing all foreign aircraft to operate unchecked within Australia. That is clearly not the position at all. Notwithstanding that Australia has taken a decision to adopt and implement the Convention and therefore has put faith in the safeguards and requirements it imposes on signatory countries, CASA still maintains comprehensive control over all aircraft operating here. Section 28A requires that CASA have entered into an agreement with each individual country registering an aircraft that someone wishes to operate on domestic commercial flights in Australia. The agreement is primarily directed towards the on-going maintenance and supervision of aircraft, rather than their underlying design and manufacture. However, on-going operational airworthiness can hardly be maintained without some measure of assurance that the structural integrity and basic design of the aircraft are in themselves safe. Thus the requirement of individual agreements with foreign authorities provides CASA with the power and capacity to maintain vigilance over airworthiness standards.
There are also numerous provisions in the Act empowering CASA to impose conditions on an operator both as a pre-requisite to being granted an AOC and on an on-going operational basis. For example, if CASA has any specific concerns about particular aspects of an aircraft’s operation that might affect its airworthiness, it can order that an authorised officer be allowed to conduct a test or inspection: s 27AC. It can order an applicant for an AOC to provide additional documents and information in order to satisfy any concerns it may have: s 27AE. Section 28BB expressly empowers CASA to impose limitations or conditions on any AOC granted. These and other provisions make it clear that CASA is in a position to supervise and control the safety and airworthiness of all aircraft operating in Australia.
Finding a balance
The practical necessity for a division of responsibilities is clear. It would be impossible for a single country, especially small countries, to be responsible for the individual certification of all aircraft that entrepreneurs wished to operate within its territory. For its part CASA readily conceded that it does not have the resources to undertake type certifications of foreign aircraft. That is no doubt why the Chicago Convention and the Australian legislative scheme render unnecessary that it do so. If it makes a choice in a particular case to prescribe its own airworthiness standards in place of the Annex 8 requirements, the legislation provides that it must accept a statement from the registering state that those standards have been met in that case. In other words, CASA is required to certify the airworthiness of all aircraft registered here, but is generally to rely on the certification of other countries for foreign registered aircraft.
As it seems to me, this balance has been struck by the Parliament to ensure that applicants for AOCs for foreign aircraft are aware of the criteria they are required to meet, and that they are, or should be, protected from ad hoc decision-making on airworthiness. CASA’s decision-making process in this case sits awkwardly with a legislative scheme designed to deliver at least a modicum of certainty within the process.
Although its motivation is worthy, CASA cannot unilaterally operate outside the boundaries set down by the Parliament. If the Parliament believed that it was not in the best interests of the safety of Australian aviation to allow the operation of certain foreign aircraft in this country due to concerns over their design and manufacture and consequent airworthiness, it was open to it to act on that concern. Instead, it settled on a compromise scheme which recognises the need for international cooperation in safety certification while permitting CASA to require the foreign authorities to comply with its own requirements including a designated set of standards in particular cases if it chooses to impose one.
Conclusions
Section 28A(1)(f) requires a statement to be provided to CASA that an aircraft complies with either Annex 8 or another prescribed set of airworthiness standards set by CASA. As no specific prescription was made in this case, there is no power in section 28A(1)(f) for CASA to require Hevi Lift to satisfy it of the underlying design and manufacturing standards of the KA32A helicopter other than by providing the Annex 8 statement. Even if it had prescribed a different standard of airworthiness to the Annex 8 criteria, all CASA could have done was to require a statement from the Russian authorities that the KA32A met those standards.
In trying to give effect to its safety concerns under cover of section 28A(1)(f), CASA has misconceived its own legislative charter. Its vague and general safety concerns in this case do not accord with the requirements prescribed by the Act and are not valid reasons for refusing to issue the AOC requested by Hevi Lift.
Relief
In its additional application, Hevi Lift sought the invalidation of the decision and a declaration that CASA is either bound to issue an AOC approving the conduct of aerial work operations using the KA32A, or bound to be satisfied by the Annex 8 statement provided in this case. Hevi Lift also sought an order that CASA issue the AOC applied for.
My current view, subject to specific argument, is that this order ought only to be made by consent, and I will do so if the parties agree. The position in this regard was not made clear at the hearing. At one point (T46) counsel for CASA said:
The problem can be resolved this way. That if your Honour is of the view that properly construed Mr Hutley’s contention is correct and that CASA has no option but to be satisfied of the airworthiness of the aircraft by the provision of the material specified in paragraph (e) and also an annex 8 statement, that resolves the issue between the parties.
I am not entirely sure what that statement now means in the light of my conclusions. Accordingly for the present, it is sufficient if the Court sets aside and quashes the decision, and declares that there is nothing in section 28A(1)(f) as would permit CASA to require Hevi Lift to establish that the KA32A warrants or requires to have a Certificate of Type Approval by CASA as to its airworthiness. The Court will also declare that paragraph (f) does not permit CASA to demand proof in the current application that the underlying design and structural integrity of the KA32A are sufficient to warrant CASA’s approval or authority to carry out domestic commercial operations in Australia other than the Annex 8 statement.
Any other appropriate orders require further argument. The position reached to this point is that no valid decision has now been made. In view of the very long period of virtually twelve months since the application, it seems appropriate, subject to argument, that the Court consider an order that CASA bring in a valid decision on the application within 7 days or alternatively give an immediate AOC for a period as would allow Hevi Lift to meet any additional legitimate requirement of CASA. The rest of the application would then be dismissed.
That would leave the original application, which is still theoretically on foot, to be dealt with. I cannot at present see the need for any relief on that application other than costs which should be dealt with only once. I will, however, hear the parties on any other relief sought including costs.
For the applicant:
Mr N. Hutley SC and Mr M. Smith instructed by Norton Smith & Co Solicitors For the respondent: Mr J. Griffiths instructed by the Australian Government Solicitor Date of Hearing: 11 August 1997 Date of judgment: 14 October 1997
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