Kyle Marsh and Civil Aviation Safety Authority
[2013] AATA 729
[2013] AATA 729
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4027
Re
Kyle Marsh
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 10 October 2013 Place Brisbane The respondent's decisions of 8 August 2013 are each set aside.
...................[Sgd].....................................................
Deputy President PE Hack SC
CATCHWORDS
CIVIL AVIATION – cheating by examination candidates – whether applicant gave another person information about questions contained in examination paper being information that might give anyone unfair advantage in examination – decision under review set aside
CIVIL AVIATION – suspension of licence – whether applicant is not fit and proper person to have responsibilities and exercise and perform functions and duties of holder of licence – decision under review set aside
LEGISLATION
Civil Aviation Regulations 1988, regs 269(1)(d), 289A(1)(c), 298A(1)(d), 298A(1)(e), 298A(1)(f)(iii)
CASES
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Re Taylor and Department of Transport (1978) 1 ALD 312
REASONS FOR DECISION
Deputy President PE Hack SC
10 October 2013Introduction
The applicant, Mr Kyle Marsh, is a commercial pilot. He wishes to obtain an Air Transport Pilot Licence (ATPL), the highest grade of pilot’s licence available, a qualification recognised by all airlines and by aviation regulators worldwide. To that end on 12 October 2011 he undertook a flight planning theory examination conducted under the auspices of the respondent, the Civil Aviation Safety Authority (CASA). He passed that examination.
In September 2012 CASA came into possession of information that suggested that Mr Marsh may have cheated in the October 2011 examination and that in July 2012 he may have provided information to another person (who I shall call N) that might have allowed others to cheat in a similar manner. On 8 August 2013, following an investigation, CASA, by a delegate, decided that he had assisted another person to cheat and decided to suspend his various licences for a period of six months.
He seeks a review of those decisions.
The statutory setting
The Civil Aviation Regulations 1988 (Cth) allow CASA to deal with cheating in a prescribed examination, that is, an examination conducted for the purpose of the issue or renewal of a licence, certificate, authorisation, rating or endorsement[1]. Where CASA suspects cheating, it may give a written notice pursuant to reg 298A(1) of the Civil Aviation Regulations which is in these terms:
[1]The term is defined in reg 298A(8) of the Civil Aviation Regulations.
298ACheating by examination candidates
(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).
The expression “examination paper” is defined in reg 298A(8) of the Civil Aviation Regulations as meaning,
all of the documents provided by the person conducting a written examination to persons attempting the examination.
The expression “model answer” is also defined. It means, in relation to an examination,
a document which sets out the correct, or suggested, answers to the questions set out in the examination paper.
Provision is made in reg 298A(3) of the Civil Aviation Regulations for the recipient of the notice to make representations to CASA explaining why the person believes the act mentioned in the notice has not been committed. Regulation 298A(4) of the Civil Aviation Regulations then provides:
(4)If:
(a)CASA notifies a person under subregulation (1); and
(b)the period of 14 days after the day on which the person received the notice has ended; and
(c)after taking into account any representations, CASA is satisfied that the person has committed the act mentioned in the notice;
CASA must notify the person of its decision.
A decision by CASA that it is satisfied as mentioned in reg 298A(4) of the Civil Aviation Regulations is able to be reviewed in the Tribunal[2].
[2]See item 34 of reg 297A(1), Civil Aviation Regulations.
It remains to note that, by virtue of reg 269(1) of the Civil Aviation Regulations, CASA may vary, suspend or cancel an approval, authority, certificate or licence if satisfied that one or more of the grounds set out in paragraphs (a) to (e) of the regulation exist. It is only necessary to refer to paragraph (d)[3] of reg 269(1). That ground is:
(d)that the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation
[3]Whilst the original decision-maker relied on paragraph (c) of reg 269(1) of the Civil Aviation Regulations, it was not relied on at hearing and CASA’s case was put entirely on the basis of paragraph (d) of reg 269(1).
The uncontroversial factual background
The theory part of the ATPL examination comprises seven parts – human factors, aerodynamics and aircraft systems, performance and loading, navigation, meteorology, flight planning and air law. The separate parts are examined separately and a candidate is permitted to take up to three years from the first examination attempt to complete all seven examinations. Once all seven have been completed successfully the candidate has completed the ATPL theory exam.
The examination in issue here was the flight planning segment. The examination was designed to test a candidate’s understanding of flight planning procedures including fuel requirements, altitude capability, performance limitations, calculations of point of no return and suchlike. A candidate was required to answer 17 questions. Each question represented an area of the syllabus. Prior to the events in issue here CASA had worked out 105 possible questions designed to test flight planning. The bank of questions had not altered greatly since the last major syllabus change in April 1994. The examination was undertaken online at premises under the control of an external provider. Each candidate had access to a computer terminal. Once the candidate was logged on, the computer selected the 17 questions randomly from the bank of questions available and displayed those questions to the candidate. The examination questions had multiple choice answers, generally with four or five possible answers, and the candidate was required to select an answer with the computer’s mouse. The examination was timed through the computer terminal. It closed down, checked the answers and determined the result at the end of the permitted time. A candidate who finished before the end of the permitted time could submit the answers and obtain the result. The examination forced candidates to work under considerable pressure of time. A candidate could revisit answers at any time until the answers were submitted, either voluntarily, or through the effluxion of time. Candidates were permitted to take maps, navigation equipment and the Performance and Operating Handbook for a Boeing 727 aircraft into the examination room.
It seems that at least by 2011 there were numerous documents circulating widely amongst students that provided answers to many of the possible 105 questions. That is not surprising given that CASA had used the same 105 questions for almost 20 years. The document in issue in these proceedings was apparently one such document. Someone (and it is not suggested that it was Mr Marsh) took four pages of what appear to be coded answers to questions and incorporated them into pages from the Boeing 727 Handbook permitted in the examination room in such a way as made them appear, on a superficial inspection, to be a part of that Handbook. The borders of each of the four pages are exact reproductions of the borders of pages from that Handbook but the text inside the borders reproduces the coded answers. The general format of the inserted part consists of a repetition of key factual data from a question with the answer at the end. Thus,
SY-WN FL290 .82M SY BRW 85900 TFOB@BRW 22400 70450
which appeared on one page was a reference to a question that asked about landing weight (LW) of a flight from Sydney (SY) to Wellington (WN) at 29,000 feet (FL290) and a brake release weight (BRW) of 85,900 kg. The correct answer was 70,450 kg. The four pages contained very many similar references. The evidence of Mr Gavin Secombe, CASA’s Cyber Exams Administrator, is that the answers to 33 of the possible 105 questions appear on these four pages. There is no reason to doubt that evidence.
The conclusion is inescapable that the four pages were designed to be taken into an examination room and to provide an improper advantage to any candidate using them. Any such use was plainly gross and flagrant cheating.
CASA first became aware of these pages in September 2012 when a whistle-blower forwarded those pages together with numerous similar pages (although the other pages were not disguised so cleverly). The whistle-blower alleged that it was “common knowledge” that candidates were using “cheat sheets” to pass the examination. The description seems entirely accurate. Subsequently the whistle-blower sent to CASA an email apparently sent by Mr Marsh to N on 7 July 2012 together with the attachment comprising the four pages. Mr Marsh accepted that he had sent the email and that the four pages with the coded answers “probably” comprised the attachment to his email to N.
CASA undertook an investigation. Mr Marsh was questioned by Mr John Moore, a CASA investigator. He agreed that he had provided the coded pages to N but denied having used the pages during his examination in October 2011.
By letter of 14 February 2013 CASA gave to Mr Marsh the notice required by reg 298A(1) of the Civil Aviation Regulations. That notice informed him that the author considered that there were reasonable grounds to believe that on 12 October 2011, in Maroochydore, Queensland, during a CASA Flight Planning Cyber Exam, Mr Marsh contravened sub-regulation 298A(1)(e) of the Civil Aviation Regulations. The notice went on to set out the facts and circumstances relied on. It set out the terms of reg 298A(1)(e) together with other relevant provisions of the Regulations. The notice then read,
On the basis of the facts and circumstances set out above, I consider that there are reasonable grounds to believe that your conduct on 21 March 2012 contravened sub-regulation 298A(e) [sic] of the CAR in that you:
(a)gave to another person, Mr Marsh, answers to questions and information about questions contained within the examination paper;
(b)before the examination knowingly received from another person answers to questions and information about questions contained within the examination paper.
It will be immediately apparent that there is discord between the facts in the introductory part of the notice, which asserted a belief about events during the examination in October 2011, and that in the latter part which asserted a belief about conduct in March 2012 involving the giving of answers to a Mr Marsh.
In any event Mr Marsh wrote to CASA (with the assistance of his father) on 8 April 2013.
Then on 17 May 2013 CASA sent a further notice to Mr Marsh. On this occasion the author, having referred to the previous notice of 14 February 2013, asserted that,
…it is open to CASA to find that [Mr Marsh] also contravened sub-regulation 298A(1)(c) of the CAR and that the delegate should also make findings to that effect under sub-regulation 298A(4) of the CAR.
The notice continued,
On the basis of the facts and circumstances set out in the previous notice, I consider that there are reasonable grounds to believe that your conduct on 7 July 2012 contravened sub-regulations 298A(1)(c) of the CAR in that you:
(a)gave to another person,[N], in the form of an email, information about questions contained in a theoretical examination paper being answers to questions and information about questions contained within that examination paper;
(b)that information was information that might give [N] an unfair advantage in the examination.
On the evidence before me N sat the examination (successfully) in March 2011.
On 8 August 2013 a delegate of CASA made the decisions that are the subject of these proceedings. The decisions were as follows:
(a)in accordance with sub-regulation 298A(4) of the Civil Aviation Regulations 1988 (CAR) that I am satisfied, and I have therefore decided to make a finding, that you contravened sub-regulation 298A(1)(c) of the CAR; and
(b)in accordance with sub-regulations 269(1)(c) and (d) of the CAR, to suspend your student pilot licence, private pilot (aeroplane) licence, and commercial pilot (aeroplane) licence until six months has elapsed from the date of commencement of the suspension.
That decision was based on findings recorded as follows:
28.Pursuant to sub-regulation 298A(4) of the CAR, I am notifying you that, on the basis of the facts and circumstances set out above, I have decided that your conduct on 7 July 2012 also contravened sub-regulations [sic] 298A(1)(c) of the CAR in that you:
(i)gave to another person, [N], in the form of an email, information about questions contained in a theoretical examination paper, being answers to questions and information about questions contained within that examination paper;
(ii)that information was information that would give [N] an unfair advantage in the examination.
29.I have decided that, whilst there is a strong inference that you had access to the cheat sheet prior to sitting the Cyber Exam on 12 October 2011, I make no finding that you contravened sub-regulation 298A(1)(e) of the CAR. However, for the avoidance of any doubt, CASA maintains its position that your answers in the Cyber Exam are consistent with the compromised answers contained in the cheat sheet as illustrated at paragraph 11 above.
This application was lodged in the Tribunal on 15 August 2013. The implementation of CASA’s decision to suspend Mr Marsh’s licences has been stayed by operation of law and as a consequence of an order of the Tribunal made on 27 August 2013. Hearing of the matter was expedited.
The parties’ cases
CASA submitted that the decision to make a finding of a contravention of reg 298A(1)(c) of the Civil Aviation Regulations by Mr Marsh should be affirmed. Despite the terms of its Statement of Facts, Issues and Contentions, it did not submit that additional findings under reg 298A(4) ought be made on the basis of any other contravention of reg 298A(1). Mr Ashton, counsel for CASA, did however submit that I ought to find as a fact, for the purposes of considering whether Mr Marsh was a fit and proper person,
(a)that Mr Marsh had, before the examination, knowingly received from another person, part of the examination paper, a copy of part of the examination paper or information about the questions contained in the examination paper being information that might give him an unfair advantage in the examination[4]; and,
(b)that Mr Marsh, during the examination, had used material that CASA does not permit to be used[5].
The first of these findings, it was said, was open even on Mr Marsh's evidence. And, as to the second, it was said that, contrary to Mr Marsh's denials, the case that he had in fact cheated during his exam was overwhelming. On the basis of those findings, Mr Marsh's conduct involved significant dishonesty – he was not a fit and proper person because the regulator could not rely on his honesty and because there must be a doubt about his competence.
[4] See reg 298A(1)(d) of the Civil Aviation Regulations
[5] See reg 298A(1)(f)(iii) of the Civil Aviation Regulations
Mr Streit, counsel for Mr Marsh, submitted that I ought accept his evidence and his denial of cheating. It was accepted that Mr Marsh had forwarded the four pages to N but there was nothing sinister or untoward about that, he was simply forwarding study material to a fellow student to assist that student to undertake his study. CASA was wrong to focus solely on this indiscretion; questions of fitness and propriety involved wider considerations.
The credit of Mr Marsh
CASA’s case put Mr Marsh’s credit very much in issue. I need deal first with that challenge. Some further recitation of the evidence is necessary.
The evidence of Mr Secombe was that CASA did not directly supervise the conduct of examinations. It contracted out to a third party the task of providing the setting and equipment for the conduct of them and of providing invigilators to supervise the candidates during the examinations. For examinations in flight planning, candidates were provided with sheets of working paper to undertake the necessary calculations. That paper, whether used or not, was required to be returned to the invigilator at the conclusion of the examination. CASA required the invigilators to inspect the material that students took into the examination to ensure that only permitted material was taken into the room and that what was taken was not marked or notated in an improper manner. Unsurprisingly, they were expected to actively supervise the conduct of candidates during the course of the examination. I would not assume other than that the invigilator supervising Mr Marsh’s October 2011 examination performed the duties as required and expected.
Mr Marsh had undertaken a number of similar examinations prior to the examination in October 2011. He was conscious of the fact of scrutiny by the invigilator of material taken into the examination. He said that on this occasion his material, including the Boeing 727 Handbook, was closely scrutinised in a process that took between five and ten minutes. Each page of the Handbook (there appear to be in excess of 100 of them) was looked at, obviously briefly. He was adamant that he did not take the four pages into the examination room although he had received those pages at some point prior to 12 October 2011.
CASA submits that I ought not accept Mr Marsh’s denial. Two matters in particular were pointed to as showing that his evidence could not be accepted. First, the improvement between his result in an examination on 12 August 2011 (when he achieved 24%) and his result of 82% on 12 October 2011. That improvement, over a period of about eight weeks, was such that it could not be explained other than by cheating. Additionally CASA pointed to the analysis undertaken by Mr Secombe that showed that Mr Marsh had answered correctly only six of the ten questions where answers were not provided on the four sheets yet had answered correctly all remaining seven questions where the answers were on the four sheets. That could not be coincidence.
Whilst I acknowledge the force of the argument I am not satisfied that Mr Marsh did cheat in the manner alleged. I consider that the scrutiny of the invigilator was such as to have made it impossible for him to have cheated. Whilst the four pages have been concocted in a way that bears a superficial resemblance to legitimate pages from the Handbook they are, in their format and layout, so at odds with the genuine pages of the Handbook as would make it evident, even on a cursory examination, that they were not genuine. Mr Marsh said that his improvement between August 2011 and October 2011 was attributable to him studying very hard. I accept that was so. Moreover, I have a favourable impression of him and see no reason to doubt his denial. Contrary to CASA’s submissions I did not regard his answers as being evasive.
Hence I reject CASA’s case of actual cheating i.e. a contravention by Mr Marsh of reg 298A(1)(f)(iii) of the Civil Aviation Regulations.
The finding of a contravention of reg 298A(1)(c)
It is not open to doubt that in July 2012 Mr Marsh forwarded the four pages to N. CASA’s delegate made a formal finding that, in so doing, Mr Marsh contravened reg 298A(1)(c) on the basis that the four pages constituted information about the questions contained in an examination paper and that information was information that would give N an unfair advantage in the examination. To the extent that the four pages replicated, in abbreviated form, questions on Mr Marsh’s examination paper the pages undoubtedly constituted information about the questions contained in Mr Marsh’s examination paper. The first difficulty I have with the finding is that it cannot have been, as was found, information that might give N an unfair advantage in any examination given that he had successfully completed that examination the previous year. To that extent, the finding cannot stand.
Perhaps recognising this difficulty, Mr Ashton put the case at hearing on a wider footing. It was not necessary to show that the recipient of the information might receive an unfair advantage, it was enough, he submitted, that anyone might receive that unfair advantage. That would encompass the possibility that the first recipient might pass the information on. As it seems to me that must be correct. The language of the provision makes it clear that the potential beneficiary class is a wider class (anyone) than the recipient class (another person). Had it been intended to impose the limitation suggested by Mr Marsh the language in sub-paragraph (iii) of reg 298A(1)(c) would have referred to “the person” being given an unfair advantage, as is the case in reg 298A(1)(d)(iii).
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 then 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.
I will then set aside the first decision to make a finding of satisfaction of a contravention of reg 298A(1)(c) of the Civil Aviation Regulations.
A fit and proper person
It remains to consider whether, by reference to Mr Marsh’s conduct, I am satisfied that he is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of the licences held by him and suspended by the decision under review.
It is not possible to attempt to define the matters that may be legitimately enquired into; each case must depend upon its own circumstances[6]. In Australian Broadcasting Tribunal v Bond[7] Mason CJ said of the expression “fit and proper person”, when used in a similar setting in the Broadcasting Act 1942 (Cth)
A licensee which is a fit and proper person in the context of s.88(2)(b)(i)[of the Broadcasting Act]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, or may be adjudged not to be, a fit and proper person.
The holder of a pilot’s licence must have an appreciation of the responsibilities of that office and discharge them. In Re Taylor and Department of Transport[8] the Tribunal was considering reg 258 of the Air Navigation Regulations, the statutory precursor to reg 269 of the Civil Aviation Regulations and relevantly identical to it. The Tribunal said[9],
In the context of reg 258(1)(d), the enquiry whether the applicant is a ‘fit and proper person’ is directly focused upon the fitness and the propriety of the applicant exercising the ‘responsibilities’ and performing the ‘functions’ and ‘duties’ of the holder of a licence – in this case a commercial pilot licence. It is not simply a question of competence to fly an aircraft which the Secretary must consider for this purpose.
In our view, what the regulation requires is a consideration of the applicant's conduct measured against the responsibilities, functions and duties of the holder of a commercial pilot licence as they emerge from the provisions of the Air Navigation Regulations. Whilst it would be inappropriate to endeavour to catalogue those responsibilities, functions and duties in any exhaustive fashion, it is clear that they include observing the interests of the safety of air navigation – not only the interests of pilots, passengers and the owners of aircraft, but also the interests of the public at large.
[6] See Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, 156-7.
[7] (1990) 170 CLR 321, 349 at [66].
[8](1978) 1 ALD 312.
[9]At 321.
As that passage makes clear, the notion of fitness and propriety involves much more than mere competence. Personal integrity, as well as the need for a regulator to be able to have confidence in a licensee’s integrity, forms part of the consideration. Here it has been shown that Mr Marsh forwarded to another a document plainly designed to aid cheating in a critical examination for the most significant individual licence available. It seems to me not to matter that N was unable to benefit from the four pages, the point is that it was obviously an aid to cheating.
I had a favourable impression of Mr Marsh. He struck me as someone with a passion for aviation and someone with a proper understanding of the need for integrity in his dealings with CASA and more generally in his aviation career. I do not regard his conduct on this occasion as demonstrating an underlying character defect or flaw that might detract from his fitness and propriety. His conduct was explicable, although not excusable, on the footing that it is obvious that there were very many versions of answers to CASA’s examination questions freely available. That was to be expected when the same bank of questions had been used for the examination, virtually unchanged, since 1994. The documents obtained by the whistle-blower and made available to CASA demonstrate that model answers to the frequently repeated questions were freely circulating amongst candidates. That conclusion is confirmed by the reduction in the pass rate of the examination, from 58.79% in the 12 months to September 2012 to 21.08% in the four months thereafter, once CASA commenced using "new" questions. I do not accept Mr Ashton's submission that that drop demonstrates widespread cheating by candidates in the past; rather it demonstrates that students of aviation, in common with all students, will seek to memorise answers when an examiner asks the same questions over and over again.
Mr Marsh participated in this system. He did not himself cheat (using the word in its popular sense). At worst he may, by his actions, have assisted others to do so and gained some potential benefit from receiving the four pages. That benefit could only have been slight given that the four pages contain far more suggested answers than were contained in the examination that Mr Marsh took. His minor role in a widespread system does not satisfy me that he is not a fit and proper person when I have an otherwise favourable impression of him. I will then set aside that part of CASA’s decision as well.
I certify that the preceding 35 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC .......................[Sgd].................................................
Associate
Dated 10 October 2013
Date of hearing 2 October 2013 Counsel for the Applicant Mr J Streit Solicitors for the Applicant HWL Ebsworth Counsel for the Respondent Mr RS Ashton Solicitors for the Respondent CASA Legal Services Branch
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