McWilliam and Civil Aviation Safety Authority
[2008] AATA 687
•6 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 687
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200500282
GENERAL ADMINISTRATIVE DIVISION ) Re LUKE MAXWELL MCWILLIAM Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Mr Egon Fice, Member Date6 August 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Egon Fice
Member
CIVIL AVIATION – parachuting – concurrent parachuting and general aviation at airfield – CASA policy regarding sport and recreational aviation activities – CASA instruments – unauthorised parachute descents through cloud – breach of CAR – conflict between parachutists and aircraft – temporal element in decision – relevant point in time when regarding facts and circumstances – addressing same question as original decision maker – role of Australian Parachute Federation – effect of guilty plea to breaches of CAR – meaning of conflicting traffic
Civil Aviation Act 1988
Administrative Appeals Tribunal Act 1975
Crimes Act 1914
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
McWilliam and Skydive City Pty Ltd v Civil Aviation Safety Authority (2004) 214 ALR 251
McWilliam v Civil Aviation Safety Authority [2004] FCA 1701
Re Luke McWilliam and Civil Aviation Safety Authority [2005] AATA 1148
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Australian Securities and Investment Commission v Donald (2004) 77 ALD 449
Shi v Migration Agents’ Registration Authority (2007) 95 ALD 260
Nelson Guang Lai Shi v Migration Agents’ Registration Authority [2008] HCA 31
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Re Yu and Civil Aviation Safety Authority (2005) 85 ALD 57
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Re Proctor and Commissioner of Taxation (2005) 87 ALD 247
Saffron v Commissioner of Taxation (1991) 30 FCR 578
REASONS FOR DECISION
6 August 2008 Mr Egon Fice, Member 1. This matter has an extensive history, at the Administrative Appeals Tribunal (AAT) and the Federal Court. It is based on a decision by the Civil Aviation Safety Authority (CASA) to issue Instrument Number CASA131/05 (Instrument 131/05), dated 6 April 2005, the effect of which is to prevent a parachute descent being made within 4.8 kilometres (2nm) of Barwon Heads Aerodrome (BHA). Prior to CASA issuing Instrument 131/05, Mr Luke McWilliam operated a parachuting business through his company Skydive City Pty Ltd (Skydive City), at BHA. Mr McWilliam is therefore clearly a person affected by CASA’s decision.
2. CASA issued Instrument 131/05 because it had serious concerns about the safety of parachuting operations at BHA following a protracted and highly acrimonious dispute involving Mr McWilliam on the one hand, and Mrs Barbara Begg, the owner of BHA, together with a number of aircraft owners and operators who operate from BHA, on the other hand. Each side accused the other of serious and dangerous conduct in the course of their respective operations at BHA. Although CASA spent considerable time investigating complaints and attempting to reconcile the differences between the two groups, it did not succeed. CASA therefore arrived at the view that it had no alternative but to disallow parachuting operations to be conducted at BHA.
3. On 6 April 2005, as well as issuing Instrument 131/05, CASA also issued Instrument Number 130/05 (Instrument 130/05). That instrument contained a direction to pilots not to permit a person to exit an aircraft to conduct a parachute descent within 4.8 kilometres of BHA. On 7 April 2005 Mr McWilliam applied to the AAT for a review of the decision to make both instruments. CASA contended that as the AAT had already decided a similar issue regarding prior instruments, which were in substantially the same terms as Instruments 130/05 and 131/05, the AAT was estopped from deciding the issue again. CASA also contended that in any event, the AAT did not have jurisdiction to review Instrument 130/05.
4. In a decision made on 11 November 2005, Deputy President S.A. Forgie decided that the AAT was not estopped from hearing Mr McWilliam’s application regarding both instruments. However, Deputy President Forgie decided that the AAT did not have jurisdiction to review the decision to issue Instrument 130/05, but it had jurisdiction to review the issue of Instrument 131/05.
5. The only issue before me on this application is whether CASA’s decision to issue Instrument 131/05 was, in all the circumstances, the preferable decision.
RELEVANT BACKGROUND
6. Mrs Begg’s family has owned the property on which BHA is situated for more than 100 years. In 1964, her family decided to develop an airport on part of that land. It included the construction of two runways, one aligned north/south and the other east/west. The north/south runway is approximately 770 metres long and the east/west runway about 600 metres.
7. In about 1976, Mrs Begg’s father sold the eastern part of the land immediately adjacent to the north/south runway. Included in the parcel of land sold was about half of the east/west runway. However, according to Mrs Begg, that land was sold on an unwritten agreement that the eastern half of the east/west runway continued to be available to be used as part of BHA. Mrs Begg said that she continued to maintain the east/west runway including mowing the grass and maintaining the markers on that runway.
8. In 1999 Mr McWilliam’s company, Skydive City, entered into an agreement with Mrs Begg for the use of a hanger and facilities at BHA, and to allow parachutists to land on BHA. The parachutists’ landing area (the drop zone) was initially what is described as the windsock paddock, which is immediately to the north of the hangers and other facilities on the aerodrome. According to Mr McWilliam, he was induced to move Skydive City’s parachuting operations to BHA at the request of Mrs Begg on the basis that he provide financial assistance for the development of facilities at the aerodrome.
9. In August 2000 Mr McWilliam purchased the property situated immediately to the east of BHA, which included half of the east/west runway, so that he could expand Skydive City’s parachute business.
10. Skydive City purchased a number of aircraft and leased others as it expanded its parachuting business. According to Mr McWilliam, the business grew rapidly and Skydive City was dropping between 14,000 and 20,000 parachutists per year.
11. From about 2001 to 2003, and again in 2005, CASA began to receive reports in the form of complaints about parachuting operations at BHA. Those complaints included:
(a)parachutists descending through cloud;
(b)parachutists not landing on the designated drop zone;
(c)parachutists coming into close conflict with aircraft at BHA;
(d)aircraft engaged in parachuting operations coming into close proximity to other aircraft at BHA;
(e)inappropriate and false radio calls;
(f)failure of the parachute aircraft to make radio calls warning of an intended parachute drop;
(g)a change in the location of the drop zone without notice to other users of BHA;
(h)parachutists descending across the runway and conflicting with approaching aircraft;
(i)parachutists walking across the runway while an aircraft was on approach to land;
(j)persons standing on the edge of a runway forcing the parachuting aircraft to brake heavily;
(k)persons making conflicting radio calls while the parachuting aircraft was operating;
(l)parachutists conducting descents in winds gusting up to 30 knots and the release of parachutists from the parachuting aircraft at a time when aircraft were in the circuit at BHA; and
(m)on one occasion when parachuting was being conducted there was no drop zone safety officer at or near the drop zone.
12. CASA investigators met with Mr McWilliam to discuss the complaints which had been made, and in particular, the incidents of parachutists jumping through cloud. CASA referred some of the complaints to the Australian Parachuting Federation (APF) for investigation. CASA also held a meeting at BHA with aircraft operators and parachutists. The purpose of the meeting was to facilitate regulatory compliance and ensure separation of aircraft and parachutists at BHA. As a result of that meeting CASA issued Instruments 34/04 and 36/04, which set out procedures for the conduct of parachuting at BHA. Despite this, CASA continued to receive complaints. CASA also received a video cassette containing video recordings of parachute descents through cloud.
13. On 28 October 2003 CASA executed a search warrant on the premises of Skydive City and seized video cassettes recording parachute descents. CASA then prosecuted Mr McWilliam in the Geelong Magistrates’ Court for breaches of the Civil Aviation Regulations 1988 (CAR). Mr McWilliam subsequently pleaded guilty to 20 charges relating to breaches of CAR 152 by making parachute descents where those descents were not authorised by CASA.
14. On 7 February 2004 a Senior Air Safety Auditor employed by CASA, Mr Andrew Ward, was present at BHA performing surveillance. He observed five parachutists descend through cloud. He reported this to CASA.
15. On 13 February 2004 CASA issued Instruments 63/04 and 64/04 which revoked Instruments 34/04 and 36/04. Effectively, these instruments made it unlawful for parachutists to land at BHA. On 20 February 2004 CASA also issued Instrument 75/04 which prohibited parachute descents within a three mile radius of five other airfields in the Geelong area. After consultations between CASA and the APF, that instrument was revoked.
16. After CASA issued Instruments 63/04 and 64/04, Mr McWilliam applied to the AAT seeking a review of the decision by CASA to issue those instruments. On 20 February 2004 Deputy President Forgie decided that CASA’s decision to revoke Instrument 34/04 and issue Instrument 63/04 was not a reviewable decision within the meaning of s 31 of the Civil Aviation Act 1988 (the Act); and that the decision to revoke Instrument 36/04 and issue Instrument 64/04 was a reviewable decision within the meaning of s 31 (McWilliam and Skydive City Pty Ltd v Civil Aviation Safety Authority (2004) 214 ALR 251).
17. Mr McWilliam proceeded with his application to the AAT in respect of Instrument 64/04 which Deputy President Forgie had held to be a reviewable decision. However, on 24 August 2004, I dismissed Mr McWilliam’s application on the basis that even if I were to find for Mr McWilliam in relation to Instrument 64/04, my decision would have no practical utility due to the restrictions contained in Instrument 63/04 which was not reviewable (McWilliam and Civil Aviation Safety Authority (2004) 82 ALD 648).
18. Following Deputy President Forgie’s decision, on 20 February 2004, meetings were held in Canberra in an attempt by CASA to permit parachuting to continue at BHA but to eliminate the risks that had been identified. Mr Ian Ogilvie, a CASA officer, met the parties on 27 April 2004 and presented a report regarding his findings. He suggested three options, including the possibility of the mediated agreement between the parties. A mediation conference was held and appeared to be successful. It resulted in an agreement being executed by the parties who then asked CASA to revoke Instruments 63/04 and 64/04. However, on 8 July 2004 Mrs Begg advised CASA that she was no longer prepared to be bound by the terms of the mediated agreement.
19. On 22 December 2004 the Federal Court of Australia (Selway J) quashed Instruments 63/04 and 64/04 (McWilliam v Civil Aviation Safety Authority [2004] FCA 1701). As a consequence, Instruments 34/04 and 36/04 became operational once again. That resulted in Mr McWilliam being authorised to conduct parachute descents at BHA subject to the limitations and procedures set out in those instruments. Also in existence at that time was a general instrument, Instrument 278/97 made under CAR 152, which applied to parachuting operations regardless of their location. Broadly, that instrument was directed to pilots in command of private aircraft involved in dropping parachutists. It required the pilot in command of a private aircraft on parachute operations to take all reasonable measures to, amongst other things, ensure that parachutists were dropped so that they did not enter cloud during their descent; that the pilot made a broadcast not less than two minutes before parachutists exited the aircraft either on the common traffic advisory frequency (CTAF) or the mandatory broadcast frequency for the area where the parachutists were being dropped; and the pilot in command was not to allow any parachutists to exit the aircraft if notified, or on becoming aware that there was conflicting traffic in the airspace in which descents would be conducted.
20. The specifications set out in Instruments 34/04 and 36/04 placed similar restrictions on a pilot in command of an aircraft engaged in parachute operations at or in the vicinity of BHA. They also placed restrictions on parachutists landing at BHA, particularly in relation to the distance parachutists could land from any part of the movement area; or from conflicting with aircraft on the live side of the circuit known to be in use at the time or aircraft using any runway, flight strip, apron or taxiway. Those instruments also contained a specification prohibiting parachuting through cloud.
21. As parachuting activities resumed at BHA, so did the complaints. Those complaints included:
(a)parachutists coming into conflict with circuit traffic at BHA;
(b)parachutists landing in close proximity to active movement areas;
(c)parachutists conducting descents where wind velocity exceeded the maximum permissible for that activity;
(d)descents through cloud;
(e)release of parachutists despite conflicting air traffic;
(f)parachuting activity conducted in the absence of a drop zone safety officer; and
(g)vehicular traffic across the active runway to pick up landed parachutists.
22. After Selway J quashed Instruments 63/04 and 64/04, CASA issued notices that it proposed to make new instruments under CAR 92 and CAR 152 in respect of parachuting at BHA. After receiving and considering responses from interested parties regarding the proposed instruments, CASA made and issued Instruments 130/05 and 131/05 on 6 April 2005. The effect of those two instruments, which revoked Instruments 34/04 and 36/04, was to prohibit a parachute descent being made within 4.8 kilometres of BHA. This precipitated another application to the AAT. Deputy President Forgie heard an application by CASA that the AAT was estopped from deciding the issue again and that the AAT did not have jurisdiction to review a decision to issue those new instruments. On 11 November 2005, Deputy President Forgie decided that the AAT was not estopped from deciding the issue again but the AAT did not have jurisdiction to review the decision to issue Instrument 130/05 (Re Luke McWilliam and Civil Aviation Safety Authority [2005] AATA 1148).
23. After issuing Instruments 130/05 and 131/05, CASA wrote to Mr McWilliam and Mrs Begg stating that it had considered comments from interested parties since the making of those instruments and had prepared procedures which should ensure adequate separation between parachutists and aircraft operating at BHA and the immediate surrounding areas. Those procedures were set out in proposed draft instruments. Solicitors for Mr McWilliam responded to CASA’s proposal indicating they were generally satisfied with the contemplated draft procedures but suggested a number of variations. However, Mrs Begg wrote to CASA on 10 June 2005 indicating that since her previous discussions with CASA, she had been informed that Geelong airport was about to be sold and would be closing down. Therefore, she was in the process of drawing up plans to situate extra hangers on the windsock paddock. She also said she was not in favour of any parachuting activity within the vicinity of the airport. She was satisfied with the prohibition on parachuting activities within 4.8 kilometres of BHA. Mrs Begg also noted that because BHA was a private airfield owned by her, and she obviously had authority over her land as to its use, CASA could not force an airspace model over BHA.
24. CASA wrote to the parties on 1 August 2005 stating that Mrs Begg opposed the making of the draft instruments. CASA also stated that Mrs Begg did not give permission for the area to the north-west of the runway intersection, known as the windsock paddock, to be used as a parachute drop zone. CASA concluded that following consideration of the submissions put by various interested parties, it was not satisfied that instruments of the kind circulated for comment should be implemented.
LEGISLATIVE SCHEME
25. It is important to understand how parachuting activities are regulated in Australia so that the legislative basis upon which the regulator makes decisions is clearly understood. The legislative framework will necessarily establish the limits of this AAT’s jurisdiction to deal with the subject matter of the dispute.
26. The principal object of the Act, which established CASA, is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents (s 3A). CASA’s functions are set out in s 9 of the Act and they include:
(1) …
(c)developing and promulgating appropriate, clear and concise aviation safety standards;
(d)developing effective enforcement strategies to secure compliance with aviation safety standards;
…
(e)issuing certificates, licences, registrations and permits;
(f)conducting comprehensive aviation industry surveillance, including assessment of safety-related decisions taken by industry management at all levels for their impact on aviation safety;
(g)conducting regular reviews of the system of civil aviation safety in order to monitor the safety performance of the aviation industry, to identify safety-related trends and risk factors and to promote the development and improvement of the system;
(h)conducting regular and timely assessment of international safety developments.
CASA is also required to encourage greater acceptance by the aviation industry of its obligation to maintain high standards of safety by conducting safety education and training programs; providing timely aviation safety advice; and fostering an awareness of the importance of aviation safety and compliance with the relevant legislation (s 9(2)).
27. Section 9A of the Act provides that:
(1) In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
(2) Subject to subsection (1), CASA must exercise its powers and perform its functions in a manner that ensures that, as far as is practicable, the environment is protected from:
(a) the effects of the operation and use of aircraft; and
(b) the effects associated with the operation and use of aircraft.
28. The Governor-General may make regulations which are not inconsistent with the Act prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to the Act (s 98). Nothing in the Act is to be taken to prevent regulations being made which provide for the delegation of a function conferred on CASA under subsection 9(1).
29. The power to regulate parachute descents is set out in CAR 152, which provides:
(1)A person must not make a parachute descent if the descent is not:
(a)authorised in writing by CASA; and
(b)conducted in accordance with the written specifications of CASA.
Penalty:25 penalty units.
(2)An offence against subregulation (1) is an offence of strict liability.
Note For strict liability, see section 6.1 of the Criminal Code.
(3) It is a defence to a prosecution under subregulation (1) if the parachute descent was a necessary emergency descent.
Note A defendant bears an evidential burden in relation to the matter in subregulation (3) (see subsection 13.3 (3) of the Criminal Code).
30. CASA made a series of general authorisations under CAR 152 permitting persons to make parachute descents. At the time CASA issued Instruments 130/05 and 131/05, the general authorisation made under CAR 152 was Instrument 563/04 which, relevantly:
(b)authorise[d] members of the Australian Parachute Federation Incorporated (APF Inc) to make parachute descents if, and only if, the descents are conducted in accordance with the specifications set out in the document “operational regulations” prepared by the APF Inc dated 15 December 2004 (sic – 2003) (APF operational regulations) and approved by CASA; and
(c)direct[ed] that members of the APF Inc, or persons who agree to be bound by the APF operational regulations, who are performing functions incidental or preparatory to a person making a parachute descent, must carry out these functions in accordance with the specifications set out in the APF operational regulations.
Instrument 454/06 made on 19 December 2006, which is in identical terms to the previous instrument, replaced Instrument 563/04.
31. On 29 January 2004 CASA issued Instruments 34/04 and 36/04. Instrument 34/04 was issued under CAR 92(2). CAR 92 deals with the use of aerodromes and it provides that CASA may, in relation to an aerodrome, issue directions relating to the safety of air navigation. The directions in Instrument 34/04 applied specifically to parachute operations within a two nautical mile radius of BHA. It set out the following directions:
1. The pilot in command of an aircraft engaged in parachute operations must not permit a person to exit the aircraft to conduct a parachute descent unless he or she ensures that the person can make the descent without:
(a)entering clouds; or
(b)having a flight visibility of less than three miles; or
(c)passing closer than 600 metres horizontally from cloud.
2. The pilot in command of an aircraft engaged in a parachute operation must not permit a person to exit the aircraft to commence a parachute descent unless:
(d)the pilot in command has, not less than two minutes before the person exits the aircraft, made a broadcast on the common traffic advisory frequency in use at the aerodrome, stating the location and altitude of the aircraft, and when the descent is expect to commence; and
(e)after making the broadcast referred to in paragraph (a) – the pilot in command has listened on the frequency to hear any aircraft response so as to determine whether there are any conflicting aircraft in the airspace in which the descent is to be conducted.
3. The pilot in command of an aircraft being used for parachuting operations within two miles of the aerodrome must at all times conduct the flight in accordance with Regulation 172 of CAR 1988, whether or not the flight is otherwise being operated under the I.F.R. or V.F.R.
32. The companion instrument to Instrument 34/04, which was made on the same date, is Instrument 36/04. Instrument 36/04 is an authorisation made under CAR 152. Again, Instrument 36/04 was made in respect of parachute descents within a two nautical miles radius of BHA. It provided:
A person who is a member of the Australian Parachute Federation Inc or the Australian Skydiving Association is authorised to make a parachute descent in the area referred to above only in accordance with the specifications set out in Schedule 1
In the case of any inconsistency, these specifications take priority over specifications that would otherwise be applicable to such a person, whether as a member of the Australian Parachute Federation Inc or the Australian Skydiving Association.
Schedule 1
1.Subject to Clause 2, a person conducting a parachute descent must not land at any place that is 200 metres or less from any part of the movement area of the aerodrome.
2.If a person is conducting a tandem descent or photographing a tandem descent, the person may land at any place that is not less than 150 metres from any part of the movement area.
3.A person must not conduct a parachute descent in the course of which he or she conflicts with any aircraft that is:
(a)on the live side of any circuit known to be in use at the time or that, having regard to the prevailing conditions, could reasonably be expected to be used at the time; or
(b)using any runway, flight strip, apron or taxi way at the aerodrome.
4.A person must not conduct a parachute descent:
(a)into or through cloud;
(b)when the flight visibility at all altitudes below the aircraft is less than three miles; or
(c)so as to pass less than 600 metres horizontally from cloud at any time during the descent; or
(d)from an altitude or flight level less than 1000 feet below any cloud formation.
33. Although Instruments 34/04 and 36/04 were revoked when CASA issued Instruments 63/04 and 64/04, they again became operational following the decision of Selway J on 22 December 2004 when Instruments 63/04 and 64/04 were quashed. Instruments 63/04 and 64/04 effectively prohibited any parachuting operations from taking place within a two nautical mile radius of BHA.
34. On 6 April 2005 CASA issued Instruments 130/05 and 131/05. Instrument 130/05 contained a direction made under CAR 92(2). It specifically revoked the directions made under Instrument 34/04 and instead provided:
The pilot must not allow a person to exit the aircraft to conduct a parachute descent within 4.8 kilometres of Barwon Heads Aerodrome, Victoria (location indicator YBRS, reference point South 380 15.5’, East 1440 26.0’).
Instrument 131/05 is, in effect, a decision varying the permission or authorisation regarding parachute descents contained in Instrument 563/04. It varies that instrument by prohibiting parachute descents being made within 4.8 kilometres of BHA. It does not affect parachute descents made outside that restricted zone.
35. Section 31(2) of the Act provides that an application may be made to the AAT for review of a reviewable decision. The expression reviewable decision is defined in s 31(1) to mean, insofar as it is relevant:
(a)a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations; or
(b)the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation, contained in such a certificate, permission, permit or licence…
36. In Re McWilliam [2005] Deputy President Forgie was required to determine, amongst other things, whether the AAT had jurisdiction to review CASA’s decision to issue Instruments 130/05 and 131/05. She decided that CASA’s decision to issue Instrument 130/05 was not a reviewable decision within the meaning of s 31 of the Act. However, she decided that Instrument 131/05 was a decision varying the authorisation or permission to conduct parachuting activities set out in Instrument 563/04. It was, therefore, a reviewable decision within the meaning of s 31 of the Act. As a result of this decision, the AAT is left in precisely the same position it was in 2004 after Deputy President Forgie decided that CASA’s decision to revoke Instrument 34/04 and issue Instrument 63/04 was not a reviewable decision; but that its decision to revoke Instrument 36/04 and issue Instrument 64/04 was a reviewable decision within the meaning of s 31 of the Act.
37. Following the decision by Deputy President Forgie (Re McWilliam [2004]), the matter came on for hearing before me for review of the decision to issue Instrument 64/04. However, I dismissed that application under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act) on the ground that there was no practical utility or benefit to the applicant, even if I were to find in his favour. That is because Instrument 63/04, which was not a reviewable decision, contained a direction prohibiting a pilot in command of an aircraft engaged in parachuting operations from allowing persons to exit from the aircraft to conduct a parachute descent within a two mile radius of BHA. Even if I had found in favour of Mr McWilliam regarding the variation of an authorisation or permission regarding parachute descents within two miles radius of BHA, the direction to pilots contained in Instrument 63/04 would have prevented that activity from taking place. Clearly, Mr McWilliam finds himself in exactly the same position now as a result of CASA making and issuing Instruments 130/05 and 131/05.
38. Although CASA could have elected to seek dismissal of this proceeding under s 42B of the AAT Act on the same grounds it advanced before the AAT at the hearing in the 2004 proceeding before me, it has elected not to do so. Rather, CASA and Mr McWilliam entered into a written agreement on 20 April 2007 by which CASA agreed to allow the AAT to proceed with a merits review of the decision to issue Instrument 131/05. As a consequence of CASA’s decision to allow this matter to proceed to a review on the merits, the parties agreed:
5.b.That in the event that the AAT makes a decision which has the effect of permitting the resumption of parachute operations at BHA by McWilliam and Skydive, whether subject to conditions or not, or whether by way of remitting the matter to CASA for reconsideration in accordance with directions or recommendations that include the resumption of parachute operations at BHA, CASA will revoke Instrument 130/05, and reserve its right to issue or cause to be issued by it (whether pursuant to CAR 92(2) or some other power) or by Airservices Australia, an instrument or direction in relation to pilots and parachute operations at Barwon Heads airport which reflect but does not in any way limit or qualify the substance of the decision by the AAT.
6.In the event that the AAT proceeds to review the decision to issue Instrument 131/05 and makes a decision as contemplated in paragraph 5 above, the parties agree that this settlement agreement does not in any way fetter or qualify the statutory duties and obligations of CASA in relation to the safety of air navigation at BHA.
39. The terms of the agreement between the parties reflect the AAT’s powers to make a decision following its review. Section 43(1) of the AAT Act provides:
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
The AAT must give reasons for its decision.
40. The question for my determination is whether CASA’s decision was the correct or preferable one on the material before me (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419). The effect of s 43(1) of the AAT Act is that, for the purpose of reviewing a decision, the AAT stands in the place of the original decision-maker. Further, as the Full Court of the Federal Court of Australia said in Australian Securities and Investment Commission v Donald (2004) 77 ALD 449 (Kenny J, Gray J agreeing) at 455:
[24] The effect of s 43(1) of the AAT Act is that, “[f]or the purpose of reviewing a decision”, the tribunal stands in the place of the original decision-maker. That is, for the purpose of determining whether the decision under review was the correct or preferable decision on the material before it, the tribunal “may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision” (emphasis added). As a consequence, the tribunal is not confined to the decision-making power upon which the previous decision-maker actually relied in making the decision under review, but is armed with all the powers and discretions of the original decision-maker that are relevant to the review.
41. In this particular matter, because the decision to make Instrument 130/05 is not a reviewable decision, my powers and discretions are limited to those vested in the original decision-maker when it exercised its powers under CAR 152. Furthermore, the powers can only be exercised for the purpose of reviewing the decision to issue Instrument 131/05. As the Court in Donald’s case said at 456:
[30] When the tribunal stands in the stead of the commission, it is no less favourably placed than the commission. The tribunal has all the powers and discretions that are vested in the original decision-maker, provided that their exercise is only for the purpose of reviewing a decision that the tribunal has power to review.
42. Therefore, although I am restricted to reviewing only part of what is clearly a composite decision (comprising directions given to pilots about procedures and use of the air-space above BHA in the conduct of parachuting operations and authorisation and specifications made by CASA regarding the conduct of parachuting operations directed to parachutists themselves) it is not possible to come to a decision regarding the making of Instrument 131/05 without considering the impact of my decision on the use of the air-space above BHA and the directions which might need to be made by CASA if I were to permit parachuting operations to be conducted.
THE RELEVANT POINT IN TIME
43. The decision to issue Instrument 131/05 was made on 6 April 2005. Since that date a number of significant events have occurred and evidence was lead on behalf of Mr McWilliam regarding those matters. The question which arose was whether I am limited to examining the situation at BHA as it was prior to 6 April 2005, or whether I can have regard to the situation as it was at the date of the hearing. As an example, Mr McWilliam had a North/South runway constructed on his property adjoining BHA. The runway was constructed in January 2008. Clearly it did not exist at the time CASA decided to issue Instrument 131/05. At the hearing, Mr McWilliam relied on the existence of the new runway on his property for a proposal put to CASA regarding airspace use which, he claimed, would permit safe parachuting operations to resume at BHA.
44. Mr Ribbands of counsel, who appeared on behalf of Mr McWilliam, submitted that the AAT can and should take into account the matters as they stood at the date of the hearing and the AAT was not restricted to examining this matter on the basis of the runways which existed at BHA on the date that CASA issued Instrument 131/05. Alternatively, Mr Ribbands submitted that if the decision in Shi v Migration Agents’ Registration Authority (2007) 95 ALD 260 prevented such an interpretation, then I should in any event take into account the facts subsequent to 6 April 2005 on the basis that they shed light on the situation that existed prior to that date.
45. Mr Harvey of counsel, who appeared on behalf of CASA, submitted that it was not open to the AAT to come to the correct or preferable decision at a particular point in time, by pointing to a different set of circumstances that were not in place or did not prevail at the time of making the reviewable decision. According to Mr Harvey, if those new circumstances were sufficient to remove the safety concerns which caused CASA to make the decision it did on 6 April 2005, Mr McWilliam should make a fresh application to CASA. Mr Harvey nevertheless agreed that the majority of the Full Court in Shi made it clear that it is open to the AAT to take into account evidence of matters which occurred after 6 April 2005, but only to the extent that such evidence may cast light upon the decision as at that date.
46. Although the parties relied on the Federal Court decision in Shi at the hearing, that decision was overruled by the High Court of Australia in its decision handed down on 30 July 2008 (after the hearing) (Nelson Guang Lai Shi v Migration Agents’ Registration Authority [2008] HCA 31). For the High Court there were two issues, namely:
(a)whether the Full Federal Court erred in holding that the AAT was limited to the facts and circumstances as they existed at the time of the CASA’s decision; and
(b)whether the Full Federal Court erred in holding that the AAT lacked power under s 304A of the Migration Act 1958 to impose the conditions that it did on the caution given to the Appellant.
47. The only issue relevant to this matter is (a) above. There was no disagreement between any of the members of the High Court regarding issue (a). Although Kiefel J dissented, it was only in respect of issue (b).
48. The decision under review which was before the High Court was whether Mr Shi was a fit and proper person to be registered as a migration agent. The question was whether the Full Court of the Federal Court erred when, while determining whether Mr Shi was a fit and proper person, it decided that it was limited to examining the facts and circumstances which existed at the time the Migration Agents’ Registration Authority made the decision that Mr Shi was not a fit and proper person for the purposes of the Migration Act 1958.
49. The fact that the AAT is required to make the correct or preferable decision on the material before it is well established by authority. Kirby J referred to the decision of the Federal Court of Australia in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 where Bowen CJ and Deane J said:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
50. Hayne and Heydon JJ, in joint reasons, reiterated that the position in Drake was long-standing. They also noted that this proposition was not in dispute. They said:
Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in AAT Act which would provide such a limitation.
51. Kirby J acknowledged that it may be inherent in the nature of a particular decision that review of the decision is confined to identified past events. He cited the example where, if a pension were payable fortnightly by reference to particular qualifications which may alter over time, the decision to grant or refuse such a pension by reference to statutory qualifications may necessarily be limited to the facts at the particular time of the decision (at para 44). There were two questions which the AAT was required to answer; the first being whether Mr Shi was a person of integrity or was otherwise not a fit and proper person to give immigration assistance; and, secondly, whether it was satisfied that the appellant had not complied with the Code of Conduct. However, as Kiefel J pointed out, the appellant acknowledged a temporal element to be present with respect to the conduct constituting breaches of the Code of Conduct. Therefore, the High Court was only required to determine the relevant point in time when facts and circumstances existed in relation to the question whether Mr Shi was a fit and proper person to act as a migration agent.
52. It is appropriate to pause at this point in the analysis of the High Court decision in Shi. CASA’s reasons for issuing Instrument 131/05 are set out in its letter of 6 April 2005 in which Mr Marcolin, General Manager, General Aviation Operations, said:
The facts and circumstances set forth above, provide reasonable grounds to believe that Luke McWilliam, Greg Bayley and Sky Dive City have engaged in conduct that constituted the serious risk to aviation safety involving:
(a) the conduct of parachute descents not authorised by CAR152;
(b)the conduct of parachute descents not in compliance with apf operational regulations (thereby not in compliance with CAR152);
(c)the conduct of parachute descents without due regard to the safety of others including other users of airspace of BHA.
53. It should be immediately apparent that the circumstances giving rise to the issue of Instrument 131/05 necessarily contain a temporal element. Obviously, one cannot decide whether breaches of the CAR occurred by reference to events which took place after it is alleged that the breaches occurred. Therefore, the fact that there is an additional runway which has now been built on Mr McWilliam’s property, and the fact that circumstances at BHA may have changed since CASA made its decision to issue Instrument 131/05, do not bear on CASA’s decision made in 2005 to issue Instrument 131/05.
54. Another way of approaching this problem is by examining the powers set out in s 43(1) of the AAT Act. The AAT is required to reach its conclusion as to the correct decision by conducting its own, independent, assessment and determination of the matters necessary to be addressed (Drake at 591). Resuming the analysis of Shi, as Kiefel J said, when considering what is the correct decision, the AAT must address the same question as the original decision-maker was required to address (para 142). By identifying the question raised by the statute for decision, that will usually determine the facts which may be taken into account in connection with the decision. The issue then becomes one of relevance, determined by reference to the elements in the question, or questions, which need to be addressed in reaching a decision. Her Honour went on to say, at para 143:
Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.
55. Kiefel J referred to the decision in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342. At paragraph 144, she said:
In Freeman, Davies J identified the importance of the nature of the decision under review, in determining what facts the Tribunal might take into account. A decision had been made to cancel Mrs Freeman’s widow’s pension. The definition of “widow”, in the Act providing for the pension, did not include a widow who was living with a man, as his defacto wife. That circumstance applied to Mrs Freeman at the time of the decision. That was sufficient to disentitle her from receipt of a pension. The statutory scheme was such that a pension, once cancelled on this ground, could only be reinstated on a further claim being made. Subsequent to the cancellation decision Mrs Freeman’s circumstances changed, such that she again qualified for the pension. His Honour held the Tribunal to have been correct to limit its consideration to the circumstances existing at the time the decision to cancel was made. The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow’s pension at the date of the Tribunal’s decision.
56. As for the circumstances in Mr Shi’s case, insofar as they depended on a breach of the Code of Conduct being established, her Honour said, at paras 146‑7:
That part of the decision which comprises the finding, that the ground in par (h) had been made out, was referable to conduct which had occurred to a point in time. That is the nature of the finding required by the provision. It follows that the Tribunal was restricted to a consideration of events to that point and not those occurring later, in determining for itself whether there had been on-compliance with the Code. The appellant accepted as much in his submissions.
147. There is another restriction which operates with respect to the evidence the Tribunal may consider as to this ground. The effect of the restriction appears to have been assumed in argument. The Tribunal does not acquire all the powers of the Authority, but only those necessary to review the decision made by it. The Authority’s decision concerned particular conduct of the appellant, which it had investigated. The Tribunal does not have all the Authority’s disciplinary powers, and does not have its investigatory powers for the purposes given by the Migration Act. The question for the Tribunal is not whether there has been a breach by the appellant of the Code in any respect, but whether those identified by the Authority are established. It may use its own evidence-gathering powers to further inform itself about those matters, but those powers do not translate to general investigatory powers and cannot be used to ascertain other, inculpatory, conduct.
57. In my view, the circumstances in Mr McWilliam’s case are identical to those in Shi’s case, insofar as the decision in Shi’s case depended upon a breach of the Code of Conduct. CASA’s reasons for issuing Instrument 131/05 were that it found there were breaches of the CAR and that those breaches impacted on the safety of air navigation at BHA. As in Shi, the breaches and the issue of Instrument 131/05 clearly have a temporal element. Therefore, I would not be assisted in coming to the correct or preferable decision by facts and circumstances which occurred after the issue of that instrument.
58. Another way of looking at this matter is by asking: what is the nature of the question which the AAT must decide? The answer must be that I am required first to determine whether there were breaches of the CAR as claimed by CASA, and, if I find that there were, then I am required to determine whether those breaches constituted a risk to aviation safety at BHA. It is of no assistance to me in determining that question to take into account the fact that Mr McWilliam has now built a runway on his land and he proposes that a different airspace model be adopted which, he contends, will alleviate the previous problems. Whether that is the case, is an entirely different question and not one which I am required to answer.
CASA POLICY REGARDING SPORT AND RECREATIONAL AVIATION
59. There is one other complication which I need to address. As is evident from the CAR’s and from the evidence of Mr Andrew Ward, a CASA officer who was previously employed as acting section head of the Sport and Recreational Aviation Section, CASA’s policy regarding sport and recreational aviation activities is to encourage industry administration of those activities to the maximum extent practicable, without abrogating the responsibilities or functions imposed upon CASA by the Act. The authorisation referred to in CAR 152 was, at the relevant time, set out in Instrument 563/04. In effect, that instrument delegated responsibility for parachuting operations to the APF.
60. As Mr Ward said in a statement provided to the AAT, CASA has exempted some sports aviation activities from parts of the CAR, conditional upon the participants in that sport complying with the conditions in the relevant exemption. However, no exemptions have been made by CASA with respect to parachuting activities. The aviation legislation does not establish a prescriptive regime for parachuting. According to Mr Ward, supervision of this activity by CASA is via the formulation of specifications which are standards and rules for parachuting. CASA recognises that the expertise and particular knowledge of a sporting aviation activity is held within each of the sport aviation organisations. Accordingly, CASA contracts with those organisations, including the APF, to perform certain functions to assist CASA discharge its responsibilities under the Act. On that basis, CASA has specified in Instrument 563/04 that the matters set out in the Operational Regulations prepared by the APF must be followed by members of the APF when making parachute descents. A breach of the Operational Regulations will result in a breach of Instrument 563/04. The safety requirements for parachute operations are set out in clause 5 of the APF Operational Regulations.
61. Mr Ward explained that CASA performs safety audits of the APF. In addition to examining APF manuals, CASA officers have accompanied APF members on their own internal audits of drop zones and have reported on their findings. Mr Ward was asked whether there was a structured risk assessment process undertaken by CASA to determine the priorities in terms of resources available that should be given to a particular organisation. He answered as follows:
I’d have to answer that no, however there is – it’s a difficult question to answer, yes, risk is brought into it, a structured risk assessment probably oversells it, I suppose I’d have to say, yes. But certainly there is a large consideration of risk and primarily it’s risks that might be to third parties. CASA obviously sees itself as protecting the people who don’t choose to engage in sport and recreation from those that do primarily. Then the organisations look after, typically, the risks of the participants inside, that’s a very general way of describing the break-up.
62. In the course of the hearing, some criticism seemed to be directed towards CASA because of its perceived reluctance to provide more information to the APF about complaints and to work more closely with the APF in resolving the dispute at BHA. In order to fully understand the way in which CASA has dealt with the voluminous complaints both by parachutists and aircraft operators in respect of parachuting activities at BHA, it is imperative that CASA’s responsibility for those operations be clearly identified. CASA’s charter letter, which it was given by the then Minister for Transport and Regional Services, the Honourable Mr J Anderson, stated, according to Mr Ward:
Effectiveness and efficiency – the safety of the fare paying passengers cannot be compromised as CASA is funded by industry and the Australian taxpayer, it has a responsibility to ensure the efficient and effective use of resources. CASA must always be conscious of the potential adverse impact of organisational inefficiencies and must avoid any unnecessary cost implications for industry, while maintaining its strong focus on aviation safety.
63. Mr Ward’s evidence was that, having regard to the charter letter, at least in part, CASA has a policy that it will, subject to an overriding concern for aviation safety, regulate sport and recreational aviation activities to the minimum level necessary so as not to endanger non-participants or property. CASA’s role is to encourage industry administration of the sport or recreational aviation regulations to the maximum extent possible, without CASA abrogating its responsibilities and functions imposed on it by the Act.
64. CASA’s policy is also clearly exposed in its proposed Part 105 of the Civil Aviation Safety Regulations 1998 (CASR) dealing with parachuting operations from aircraft. At paragraph 3.1.2 of that document, it is stated:
The proposed rules minimise the risks to which the public and other airspace users are exposed, and to provide for their administration by industry organisations to be authorised under the related proposed rule CASR Part 149 – recreational and aviation administration organisations – to the greatest extent possible.
65. Despite delegating responsibility for the administration of recreational aviation activities to the various regulatory bodies responsible for those activities, CASA nevertheless retains the power to review and regulate recreational aviation activities as and when the need arises. This, according to Mr Ward, might result in CASA directly intervening in circumstances where aviation safety is at risk and the regulatory process has broken down. Nevertheless, as is set out in paragraph 3.4.3 of the proposed Part 105 of the CASR, CASA devotes its major safety efforts to the safety of the travelling public and people on the ground. In delegating responsibility for administering the recreational activities to industry organisations which have the ability to do so safely, the proposed Part 105 rules identify the responsibilities of individual participants and the proposed Part 149 rules will set out the requirements for the administering organisations.
66. It is clear that the safety of participants in a recreational aviation activity, such a parachuting, essentially becomes the responsibility of the industry organisation which administers that activity. Although CASA is undoubtedly concerned about the establishment of regulations which will ensure safe activity, it is not its role to monitor those activities from the perspective of the safety of the participants. However, CASA will take an active role where sport and recreational aviation activities impact on general aviation and people on the ground. Therefore, CASA’s direct involvement, generally, is only brought to bear on parachuting activities where they impact on non-participants.
67. It should also be clear from what I have said above that while CASA’s role is to encourage safe sport and recreational aviation activities, where those activities pose a risk to the airborne public or to property, priority will be given to the travelling public or to people on the ground that may be affected by those activities. An example of this can be found in my decision in Re Yu and Civil Aviation Safety Authority (2005) 85 ALD 57. In that case Mr Yu had purchased an ex-military single engine jet aircraft and he was authorised to base it at Bankstown Airport near Sydney. The restoration and flying of ex-military aircraft (war birds) is recreational aviation activity. Although Mr Yu was initially granted permission to fly the aircraft to and from Bankstown as its home base, CASA reconsidered its decision because it was concerned that the aircraft posed an unacceptable risk to persons on the ground. CASA therefore cancelled the special certificate of airworthiness which allowed the aircraft to be operated to and from the Bankstown Airfield. According to CASA, the risk was simply too great given the density of population around Bankstown Airfield, should the aircraft lose its engine and be unable to make a forced landing on the airfield. I accepted CASA’s submissions in that case and affirmed its decision on the basis that the risk to persons and property on the ground in the vicinity of Bankstown Airfield was unacceptable. In other words, CASA’s decision to give priority to the safety of persons not involved in that sporting activity needed to be upheld because the consequences of an accident with that kind of aircraft would, most likely, result in death and serious injury to non-participants.
68. In the same way, CASA must give priority to the safety of those persons who are not involved in the recreational pursuit of parachuting over those persons who participate in that activity.
DANGERS POSED TO THE PUBLIC AT LARGE BY PARACHUTING ACTIVITIES
69. The voluminous complaints which have been lodged by parachutists and other aviation participants, as well as persons on the ground who were not participating in any aviation activity, indicates considerable concern about possible collisions between aircraft and parachutists, and concern about the risk of damage to property by parachutists landing in other than the designated drop zone. Although the latter concern is more likely to have serious consequences for the parachutists, there nevertheless exists a risk of some damage to property. As far as collisions with aircraft are concerned, although statistically that may pose a small risk to non-parachutists, the consequences of such a collision would, more likely than not, result in fatalities to the participants in the sport as well as non-participants. The level of risk of course increases as general aviation activity increases. It is principally the serious consequences of a collision to non-participants that has caused CASA to act in this matter, by issuing instruments forbidding parachuting activity within a two nautical mile radius of BHA. From the evidence before me, the activities causing most concern to CASA are the allegations of parachutists jumping through cloud; and parachutists coming into conflict with aircraft when landing on the airfield while there was aircraft activity in the circuit and on the ground.
PARACHUTISTS JUMPING THROUGH CLOUD
70. This particular activity was the subject of the majority of complaints which expressed concern for the safety of general aviation users at BHA. Although many of the complaints have come from owners and users of aircraft based at BHA, there have also been a number of other witnesses who provided evidence about this type of activity. They include persons who had jumped in tandem with an Instructor and penetrated cloud on the descent; pilots transiting the BHA CTAF; an authorised Fisheries Officer who took photographs of parachutists descending through cloud; instructor pilots in the circuit at BHA; CASA Flying Operations Inspectors flying in the airspace around BHA who witnessed parachute operations being conducted in weather conditions which were described as IFR; a report by a Grade One Flying Instructor from Geelong Airport who is the holder of an Airline Transport Pilot Licence and a Grade One Instructor rating; and Mr Ward who conducted a surveillance on 7 February 2004 when he observed a number of parachutes appear from the clouds.
71. In addition to those complaints, Mr Geoffrey McLaws, a CASA Investigator, made an application to the Magistrates’ Court in Melbourne on 23 October 2003 for the issue of search warrants under s 32AF of the Act. Those warrants were executed on 28 October 2003 and Mr McLaws seized a number of photographs and video cassettes which purportedly disclosed a number of parachute descents taking place through cloud. Mr McLaws then referred this matter to the Commonwealth Director of Public Prosecutions (DPP). As a result of the investigation conducted by Mr McLaws, the DPP brought charges against Mr McWilliam which included 20 counts of breaches of CAR 152 by making a parachute descent where that descent was not authorised in writing by CASA and not made in accordance with the written specifications of CASA set out in Instrument 262/02. The specifications in Instrument 262/02 prohibited parachutists from entering cloud in the course of a descent. At a contested mention in the Geelong Magistrates’ Court on 6 July 2004, Mr McWilliam entered a plea of guilty to all charges on the basis that, if he did so, no conviction would be recorded and he would be placed on a s 19B recognisance with the condition that he pay to the Geelong Hospital the sum of $10,000. The Magistrate also cautioned Mr McWilliam that he was on notice that if he should re‑offend, he would face more serious consequences.
72. Mr Ribbands submitted that although there were numerous allegations of jumping through cloud, some had been investigated by the APF and were found to be unsubstantiated. Mr Ribbands referred to two letters written by Mr Graham Windsor, Chief Executive Officer of the APF, to CASA on 24 December 2004 and 15 February 2005. In his first letter, Mr Windsor said that the APF had not received details of complaints promised by Mr Rothwell so that it could investigate whether breaches of the rule regarding jumping through cloud could be established. What Mr Windsor said was that many of the incidents of jumping through cloud and traffic conflicts quoted by CASA have not been substantiated, to the APF’s knowledge. Mr Windsor did say that since the APF had been brought into the controversy regarding parachuting at BHA, in September 2003, it had conducted considerable surveillance at BHA and it was confident that Skydive City was adhering to all rules. In his letter of 15 February 2005 Mr Windsor again said that the APF could not conduct a full investigation of the complaints if it was not provided with details. Although Mr Windsor did refer to one anonymous complaint to CASA about alleged jumping through cloud, he did not make any finding about that incident. In his statement of evidence, Mr Windsor referred to a number of complaints received by the APF regarding jumping through cloud. In each case, Mr Windsor indicated that the APF concluded that there were no grounds to substantiate the complaint. However, Mr Windsor agreed that the APF did not receive the bulk of complaints but rather they were made to CASA. Mr Windsor was critical of CASA for not providing details of all complaints to the APF.
73. Mr Windsor did not set out in detail in his written statement the nature of the investigations which the APF conducted nor the basis upon which it came to its conclusions that the alleged jumping through cloud incidents which it examined could not be substantiated. In cross-examination, when Mr Windsor was asked whether he should have been provided with more information from CASA, he replied that between September 2003 and 2004, although the APF was getting some information, it was, leading up to that period, cut out of the loop. By being cut out of the loop, Mr Windsor said that the APF could not know whether there was a safety problem.
74. Perhaps more significantly, Mr McWilliam, when cross-examined about whether any jumping through cloud had taken place in the past, said that such activity, inadvertently or otherwise, takes place at all drop zones across Australia. He said I don’t think any operator could put up their hand and say, no, a parachutist hasn’t gone through cloud. Mr McWilliam also said that he did not believe that such activity was a safety issue.
75. In his submissions, Mr Ribbands pointed to the fact that Mr McWilliam pleaded guilty to charges relating to jumping through cloud in contravention of the regulations and in a plea bargain, received a good behaviour bond. He submitted that many of the allegations of jumping through cloud remained unsubstantiated and that they are subject to query both as to their accuracy and whether they were genuine.
76. There is a problem with this submission; that being the effect of the guilty plea in the Magistrate’s Court. The Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 was dealing with an order to deport the respondent under the Migration Act 1958 on the ground that he was convicted of manslaughter in the Supreme Court of New South Wales. The appeal was brought from a decision of the AAT where the AAT proceeded on the basis that the jury in SRT’s trial may have convicted him on an erroneous assumption. The Full Court (Branson, Lindgren and Emmett JJ) said, at 240:
[25] It is impermissible for the Tribunal to impugn the conviction on which a deportation order is based: Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441.
In the SRT case, when making a decision concerning deportation, the Minister and, subsequently the AAT, was required to take into account, amongst other things, the nature of the offence and the risk of further offences. Although the AAT is not bound by the rules of evidence but can inform itself on any matter in such manner as it thinks appropriate (s 33 AAT Act), where the decision to be reached depends upon there having been a sentence that satisfied the section of the Migration Act with which the AAT was concerned regarding deportation, the Court held it was not open to the AAT to engage in any enquiry which would impugn the sentence. The Court said, at 244:
[41] There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.
77. In Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 Branson J, was again confronted with the argument which was put in SRT’s case. However on this occasion, the convictions which the AAT went behind were not those which resulted in the deportation order being made. Branson J noted, at 325:
[39] …it is known that there are circumstances in which an individual, for various reasons, may opt to be convicted on his or her plea of guilty although a defence to the charge might be available.
After examining the authorities on this subject, including the decision in SRT, her Honour concluded, at 325:
…
As a consequence, in my view, the Act [Migration Act 1958] should be construed as requiring a decision maker under s200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
78. I should also refer to the decision of Deputy President Forgie in Re Proctor and Commissioner of Taxation (2005) 87 ALD 247. In examining cases where the AAT’s decisions may give rise to issue estoppel, the Deputy President referred to the decision in Saffron v Commissioner of Taxation (1991) 30 FCR 578 and said, at 253:
…In Saffron v Cmr of Taxation… Davies J distinguished between those cases in which the tribunal’s power is founded on a conviction and those where it is not. His Honour explained:
‘The rationale for the distinction between the two categories is, of course, that in the first of the categories the exercise of the power arises out of, and is founded on, the conviction. The power conferred is not a power to reconsider that matter or the essential facts on which the conviction was based but a power to consider matters of discretion and like consequential matters which flow from the established fact of conviction. When the power is not so founded, then all relevant matters, including the facts on which the conviction was based, are open.’
[78] These cases lead to the conclusion that, where the fact that a conviction has been recorded is essential to found the tribunal’s jurisdiction, the tribunal is bound by that conviction and the essential facts on which it is based. That principle would extend beyond a conviction to a determination, judgment or order that has been made by a court and which is an essential element in founding the decision-maker’s ability to make a decision and so the tribunal’s jurisdiction to review it.
79. I am of course mindful of the fact that in Mr McWilliam’s case, no conviction was recorded although he was required to provide a recognisance of $5,000 to comply with a number of conditions including the fact that he was to be of good behaviour for twelve months; and he was required to make a donation to Geelong Hospital of $10,000 within three months. The order was made under s 19B of the Crimes Act 1914 (Crimes Act).The basis upon which orders are made under s 19B are set out in subsection (1) which provides:
19B Discharge of offenders without proceeding to conviction
(1)Where:
(a)a person is charged before a court with a federal offence or federal offences; and
(b)the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i)the character, antecedents, age, health or mental condition of the person;
(ii)the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order…
80. Therefore, despite the fact that no conviction was recorded, because the Court discharged Mr McWilliam under this section of the Crimes Act, it must have been satisfied that one or more of the charges were proved. As the breach of the regulation dealing with jumping through cloud without approval is one of the significant breaches relied on by CASA in deciding to prohibit parachuting activity at BHA, it seems to me that it is appropriate to apply the principle stated by the Full Court of the Federal Court in SRT. If I were to come to a decision regarding jumping through cloud which is inconsistent with the Magistrate’s decision, it would seem to me to undermine public policy and confidence in the criminal justice process.
81. Mr McWilliam said in cross-examination that the Magistrate, in making an order under s 19B of the Crimes Act, considered the charges brought against him in 2004 as being trivial. He also made that claim in the letter he wrote to the then Minister for Transport and Regional Services, Mr John Anderson, on 14 July 2004. However, as is evident from the grounds upon which a Magistrate might make orders under s 19B, that is only one of three possibilities. That ground does not appear to be the basis on which the Magistrate made the order. The order states:
And the Court is satisfied that the charge(s) are proved, but is of the opinion, having regard to:
THE CHARACTER, ANTECEDENTS, AGE, HEALTH, MENTAL CONDITION
That it is inexpedient to inflict* any punishment/* any punishment other than a nominal punishment.
Clearly, the Magistrate made the order having regard only to s 19B(1)(b)(i) and did not consider that the offence was of a trivial nature.
82. In addition to the substantiation provided by the Magistrate’s decision, there are numerous reports of parachutists descending through cloud at BHA. Although Mr Ribbands submitted it is not always possible to determine accurately whether a parachute has descended through cloud by observing the descent due to parallax error and the fact that parachutists may find a sufficiently large hole in the clouds through which they can descend lawfully, I cannot accept that the complaints which have been lodged with CASA and the APF could all be wrong. In fact, the descriptions provided by many of the witnesses, are not, in my opinion, fanciful or fabricated. Some of the reports were provided by persons who made descents through cloud and others by experienced pilots. While I accept that because of the strained relations between parachutists and aircraft owners of BHA, a number of the complaints may well be spurious or inadvertently wrong, that cannot be the case for all of the complaints made. I am therefore satisfied and find that parachutists at BHA conducted unlawful descents through clouds on many occasions and that a number of these events were not inadvertent.
83. Although Mr McWilliam conceded that parachutists sometimes descended through cloud without authorisation, he contended that such activity did not necessarily constitute a threat to air safety. In his written statement, Mr McWilliam said a parachute descent through cloud is not, of itself, inherently dangerous. A more accurate description was provided by Mr Windsor in his statement where he said CASA and the APF recognised that parachute descents can be and are safely conducted through cloud in accordance with certain rules and procedures. According to Mr McWilliam, Skydive City has a cloud descent manual and operating procedures and that it applied for approval for cloud descents in 2002. Although there was some controversy as to whether an application had in fact been made, Mrs Begg, who was required to consent to that particular parachuting activity, refused to agree. At the end of the day, Mr McWilliam agreed that Skydive City did not have approval to make parachute descents through cloud. The evidence clearly discloses that is the case and therefore I am satisfied that Skydive City did not, at any relevant time, have CASA approval to make parachute descents through cloud.
DOES UNAPPROVED PARACHUTING THROUGH CLOUD CONSTITUTE A THREAT TO THE SAFETY OF AIR NAVIGATION?
84. While many arguments were put to me regarding the safety of parachuting through cloud in accordance with procedures approved by CASA or the APF, there is no point in canvassing those arguments and evidence because the uncontradicted evidence is that Skydive City never had approval for making parachute descents through cloud. Also, I am not concerned with the safety of the parachutists themselves when making this kind of parachute descent. The approved procedures take care of that aspect, as well as the aspect with which CASA is primarily concerned, that being the safety of non-participants. The safety issues that arise from this unauthorised activity are:
·the risk of collision with an aircraft; and
·the ability of aircraft to take avoiding action in the event that the parachutists are seen by the pilot.
85. In cross-examination Mr McWilliam was asked whether an ab initio pilot undergoing training in the circuit of an aerodrome like BHA would consider the unexpected arrival of a parachute through cloud as dangerous. Mr McWilliam answered that the unexpected arrival of parachutists traveling through cloud was likely to raise apprehension. However, if the cloud base was high and the parachutist deployed his or her chute at high altitude, he did not consider that apprehension would arise. He considered that the unexpected arrival of any parachutes would be regarded by a pilot as dangerous, regardless of the cloud conditions.
86. Mr Windsor, who is a very experienced parachutist, said in evidence that although there was a long-standing rule imposed on parachuting operations in Australia by CASA, prohibiting parachuting through cloud, as long as he was able to find a hole through the cloud which he could fit through; and that if he looked straight down below him he could see the ground, he could jump. I must say that this evidence from the CEO of the APF is surprising. The APF’s Operational Regulations set out the following operational requirements for parachute descents:
5.2.4.Unless in accordance with the written specifications of CASA, all descents shall be made in meteorological conditions such that the target is clearly visible and the parachute does not enter cloud.
5.2.4.A.A parachute descent shall not be made unless the parachutist has positively fixed his/her position in relation to the target.
87. As far as the written specifications of CASA are concerned (prior to the issue of Instrument 131/05), when parachuting at BHA, Instrument 36/04 contained the relevant specifications. It provided that a person must not conduct a parachute descent into or through cloud; when the flight visibility at all altitudes below the aircraft is less than three miles; so as to pass less than 600 metres horizontally from cloud at any time during the descent; or from an altitude or flight level less than 1000 feet below any cloud formation.
88. Mr Windsor’s evidence was that the material given to the APF regarding complaints about parachuting at BHA was not sufficient to alert him to the fact that there was a safety issue. However, he agreed he was only given a small proportion of the total complaints as most were sent to CASA and CASA did not forward them to the APF. Mr Windsor was also asked whether he regarded the fact that Mr McWilliam pleaded guilty to charges of jumping through cloud raised a safety issue. Mr Windsor replied there was no conviction and the result seemed to be meaningless because no sanctions were imposed. He considered it to be a minor matter.
89. It is quite clear CASA did not regard this as a minor matter. Otherwise, it would not have gone to the trouble of issuing Instrument 36/04; ensuring that the APF Operational Regulations prohibited jumping through cloud without authorisation; and prosecuting Mr McWilliam on 20 charges of having breached CAR 152 as a consequence of unauthorised parachute descents through cloud. In cross‑examination, Mr Ward agreed that on a cloudless day, the risk of a skydiver colliding with an aircraft might be very remote. However, he accepted that the consequence would be catastrophic. He agreed that it would be very difficult, if not impossible, for a pilot to see a descending skydiver even on a clear day. Mr Ward also said there were two mathematical models which were used by CASA to assess risk. However, those models were designed for approved descents through cloud. My understanding was they have no relevance at all to unapproved descents through cloud by parachutists.
90. I asked Mr Ward to give me an overall impression about the risk analysis in respect of the human factors at BHA. His response was that it constituted a big potential safety problem. When asked to explain why it was a safety problem, Mr Ward said:
Because in a situation where you’ve got no co-operation and – I mean it’s difficult to assure safety. I mean aviation relies on the co-operation of all of the participants and that they will do – that they will what they’ll do and they’ll do it and that it will be done in accordance with procedure because that sets the expectation and everybody relies on that expectation. So with the breakdown in human relationships on the airfield CASA became very concerned about safety, yes.
When asked why the end result was CASA prohibiting parachuting activities at BHA, Mr Ward answered:
I believe that it ended up that way because that’s the only way given the complete breakdown of co-operation, that any form of safety could have greater assurance.
91. Mr Ward was also asked about the statistics involving collisions between parachutists and aircraft. He said there had been very few collisions but that he personally witnessed the consequences of one such collision in France where a parachutist collided with a glider as the parachutist came through cloud. He said he was aware of four or five collisions, or something like that, but again reiterated that although the probability of such an event taking place is small, the consequences of its occurring were simply not acceptable.
92. In my opinion, unauthorised parachute descents through cloud at BHA do constitute a serious risk to the safety of air navigation in that area. I accept what Mr Ward says about this type of activity, given his background and experience with CASA in the regulation of sport and recreational aviation activities. I also accept his evidence as a matter of logic. While the chances of a collision between parachutists and an aircraft may be relatively small, the consequences of such an event would necessarily be catastrophic, not only for the parachutist but also for the occupants of the aircraft. I agree with Mr Ward that it is the consequences of such an event taking place which makes the risk unacceptable. Even though the chance of a parachutist and an aircraft coming into collision may be small, that is not a satisfactory answer in terms of aviation safety, particularly from the perspective of non-participants in parachuting.
COMPLAINTS ABOUT CONFLICTING TRAFFIC
93. Conflict between parachutists and aircraft is the second topic of the majority of complaints received by CASA regarding parachuting activities at BHA. They include conflicts between parachutists and aircraft which were airborne; aircraft on the ground taxiing or preparing for takeoff; and conflicts between the aircraft involved in the parachuting activities and other aircraft in the circuit area or transiting the CTAF area at BHA. Again, there were voluminous reports of such conflicts although, to be fair, they came predominately from a small number of aircraft owners/users at BHA who are strongly opposed to parachuting activities at that airfield. That, of course, is not to say that those complaints are without substance.
94. There was ample evidence from witnesses, other than the main protagonists opposed to parachuting, about a variety of incidents where parachutists descended to land at BHA while aircraft were in the circuit area, transiting the area or on the ground either preparing to take off or following landing. There was also a report of a parachutist landing near the office and nearly colliding with a person walking over to the hangars. There were reports about the pilot of the parachute aircraft not making a broadcast call on the CTAF two minutes prior to releasing parachutists, resulting in conflicting traffic only becoming aware of parachutists in the circuit area at BHA when they became visible. There were reports of parachutists landing on the active runway or very close to the active runway as aircraft were on final approach, causing the pilot to abort the landing. There were also reports of the aircraft engaged in the parachuting activities landing while parachutists were close to the ground and in the vicinity of the runways at BHA. Some of the complaints were made in the form of a Statutory Declaration.
95. After Instruments 63/04 and 64/04 were quashed by Selway J on 22 December 2004, parachuting operations resumed at BHA. The resumption of parachuting activities resulted in resumption of complaints being received about conflicting traffic. On a number of occasions it was reported that aircraft in the circuit heard the radio call that parachutes had been released and decided, for the sake of safety, to clear the circuit area entirely until the parachutists had landed. On one occasion, when the aircraft carrying parachutists made a radio call indicating two minutes to drop, a pilot in the circuit reported to the aircraft carrying the parachutists that there was traffic in the circuit and received an acknowledgement. The parachutists were nevertheless dropped and the aircraft in the circuit left the circuit so it would not conflict with the parachutists. One another occasion, in the course of an air rally held at BHA in February 2005, a pilot of an aircraft involved in the air rally reported seeing two parachutes land on the live side of the circuit while runway 17 was in use. At the same time, two canopies were above the runway and two aircraft, one mid‑downwind and one late base, were in the circuit. The pilot also reported parachutists were dropped regularly over the next hour or so as aircraft arrived and departed BHA.
96. In a statement prepared by Mr Shaun West regarding an incident on 19 January 2005, when he was the pilot of the aircraft involved in carrying parachutists aloft, Mr West said he had been making appropriate broadcasts on the local CTAF and on the Melbourne Centre frequencies at least two minutes prior to dropping and after dropping parachutists. In response to an allegation that he allowed parachutists to descend while there were aircraft in the circuit, Mr West said:
In relation to me calling 4 canopies away whilst two RAA aircraft were in the circuit I am at a loss to understand the problem as I had made my radio broadcast in relation to the drop and being there to be no conflicting traffic.
97. In his evidence-in-chief, Mr McWilliam said:
The conflicting traffic issue came in late 2003. Before then we hadn’t received this conflicting traffic argument. And that was started by fanatical-type person called Ron Fisher. I think he’s well known to CASA for making complaints about everything.
98. Mr McWilliam’s evidence is incorrect. The complaints in evidence indicate that the conflicting traffic problems were being reported as early as August 2002 and they were not reports made by Mr Fisher. One report was by Mr Peter Whitworth and another by Mr Philip Allardyce. In fact, a report summary prepared by Mr McLaws indicates that reports about conflicting traffic were being made as early as February 2001. I have not been provided with copies of those reports but have taken the information from Mr McLaws’ summary.
99. Mr McWilliam also accused one of the protagonist aircraft owners based at BHA of making conflicting traffic reports when parachutists were about to drop at BHA. According to Mr McWilliam, such reports were made at times when there was not even an aircraft remotely near BHA. Mr McWilliam said his advice to the pilots flying the parachuting aircraft was to abort a parachute drop on a conflicting traffic report and to re-assess the situation.
100. In cross-examination, Mr McWilliam was asked about the conflicting traffic complaints which had been summarised by Mrs Begg. Mr McWilliam said that all of the incidents since the end of 2003 had been investigated by the APF and that all of the accusations were shown to be false. However, as I have already said above in relation to jumping through cloud, the APF was not aware of the majority of complaints as they were directed to CASA. As for circuit traffic, Mr McWilliam said that there was always traffic in the circuit area. He said it wasn’t an irregular occurrence, it was normal. When asked if the numerous complaints made were figments of someone’s wild imagination, Mr McWilliam suggested that they were highly embellished. He regarded them as an extension of the truth at its best.
101. However, in the notice given to Mr McWilliam about CASA’s intention to issue new instruments setting out specifications for parachuting at BHA, CASA referred to a written complaint made by Mr McWilliam on 14 July 2004 to the then Minister for Transport, Mr John Anderson. In his letter Mr McWilliam claimed that a pilot deliberately flew beneath parachutists under canopy; that an aircraft performed a beat-up over landed parachutists resulting in the aircraft nearly hitting fuel bowsers; that there was an attempt by the pilot of an aircraft to run down a group of parachutists; and that pilots were deliberately flying at parachutists under canopy. He also wrote to Mrs Begg on 12 January 2004 stating she had encouraged staff to behave aggressively and fly dangerously close to parachutists. He alleged that on a number of occasions instructors had pulled out onto the runway in front of the parachute aircraft causing it to go around.
102. CASA also noted in its letter that, contrary to what Mr McWilliam said in his evidence about the APF investigating these complaints fully and finding they were without substance, the APF had been unable to deal with those complaints because CASA has not been prepared to give details of those allegations. The letter noted CASA had investigated the complaints and there was no requirement for the APF to do so. Nevertheless, it appears that Mr Windsor was given a copy of the complaint from Mr Whitworth regarding a conflict between aircraft and parachutists. The APF did not investigate the matter, according to Mr Windsor, but rather asked Mr Bayly, the Chief Instructor of Skydive City, to investigate. According to Mr Windsor, Mr Bayly confirmed that parachutists had maintained the proper safe distance from aircraft. I have to say that little weight can be placed on the results of this type of investigation, where the so-called investigator has a clear conflict of interest. Mr Windsor also admitted, in his oral evidence and in a letter dated 25 November 2003 addressed to one of the aircraft owners at BHA, that there were obviously a lot more complaints in existence of which the APF was not aware. He also made it clear that he had no knowledge of the nature and extent of reports made to CASA.
103. In examining the evidence regarding conflicts which were reported to CASA, I have deliberately avoided making mention of those reports provided by the protagonists who are aircraft owners or operators at BHA. Nor have I referred to any of the claims made by Mrs Begg, of which there were many. The reason is that I have attempted to separate out those persons with vested interests from those who do not have such interests. While I do not mean to be disrespectful to those persons with vested interests regarding the complaints they have made, in the interests of fairness, I have accorded their evidence less weight. Despite that, given the strong and detailed reports made by other pilots operating at BHA or transiting that airspace, the weight of evidence indicates that conflicts did occur. In fact, Mr McWilliam admitted as much in his letter to the Minister for Transport, although he placed a different gloss on those events by suggesting that the pilots deliberately flew close to parachutists. It is of course not possible to discern the truth absolutely as the makers of those complaints, except for Mrs Begg, were not cross-examined. I am nevertheless satisfied and find that, on the balance of probability, serious conflicts between aircraft and parachutists occurred from time to time.
DID CONFLICTS BETWEEN PARACHUTISTS AND AIRCRAFT POSE A RISK TO SAFETY?
104. Prior to CASA issuing Instruments 34/06 and 36/06 on 29 January 2004, the only instruments that existed regulating parachuting activities were those of a general nature and not specific to BHA. They required parachute descents to be made in accordance with the specifications set out in the APF Operational Regulations. I have been provided with a copy of the Operational Regulations which came into force on 15 December 2003 and another copy which came into force on 15 December 2006. I have not been provided with any earlier copies. The 2003 Operational Regulations, which appear to be missing a page dealing with operational procedures, provided:
5.2.14Parachute descent shall not take place in controlled airspace except in accordance with an airways clearance using the word “clear to drop”. Prior co‑ordination with air traffic control (ATC) may be required, but as a minimum the pilot shall advise on first contact with ATC the desired altitude and the phrase “for parachute drop”. If the parachutists will leave controlled airspace on descent, it is the pilot’s responsibility to ascertain that the airspace below is clear before dropping parachutists.
105. From 29 January 2004, specific procedures were introduced regarding the conduct of parachute descents within two nautical miles radius of BHA. Those were set out in Instruments 34/04 and 36/04, the details of which are set out above.
106. The airspace above BHA, at FL (Flight Level) 140 and below, which seems to be the usual altitude from which parachutists were released, is Class G airspace. In Class G airspace, which is not controlled airspace, to comply with CAR 172(2)(b), the pilot of the aircraft carrying the parachutists must maintain 1,500 metres horizontal separation from cloud and 1,000 feet vertical separation from cloud while the visibility must not be less than 8000 metres. That applies to altitudes of 10,000 feet above mean sea level and above. Below 10,000 feet the separation from cloud remains the same, although acceptable visibility may be reduced to 5,000 metres.
107. Although parachutists at BHA are not released in controlled airspace and therefore it may be said that APF Operational Regulation 5.2.14 does not apply, it is sufficiently clear from 5.2.14 that in uncontrolled airspace it is the pilot’s responsibility to ensure that the airspace into which the parachutists are to be dropped is clear. Therefore, it appears that prior to the introduction of Instruments 34/04 and 36/04, the Operational Regulations did not make specifications regarding conflicts other than to provide that it was pilot’s responsibility to ensure that the airspace below it was clear before dropping parachutists. The ordinary meaning of the word clear, when used as an adjective, means: free from cloud and unobstructed or unoccupied (the Shorter Oxford English Dictionary). If that is the sense in which the word clear was used, then it would seem that the Operational Regulations prohibited the release of parachutists if there were any aircraft in the circuit area or transiting across the airspace over BHA. However, after the introduction of Instruments 34/04 and 36/04, the requirements seem to have been relaxed, as parachutists could be released when there were aircraft operations taking place at BHA provided that conflict was avoided with aircraft on the live side of the circuit for the runway in use and any aircraft on the ground using a runway, flight strip, apron or taxiway.
108. The notion of conflicting traffic may well mean different things to different people. However, I agree with the description given by Mr Barry Foster, who provided a witness statement on behalf of Mr McWilliam. Mr Foster is a very experienced pilot and flying instructor with over 23,000 hours flight time in general aviation aircraft. He is the owner of the Leongatha aerodrome. According to Mr Foster:
The term “conflicting traffic” is in reality a concept that applies to a potential for aircraft to encroach upon each other to the point where a situation of danger may arise.
Quite clearly, it is unhelpful to describe a conflict as not being dangerous where no collision between a parachutist and an aircraft occurs. If there is a real risk of such an event taking place, for instance where an aircraft initiates avoiding action, that would, in my opinion, constitute a conflict which is properly described as a serious risk to aviation safety.
109. The problem with parachuting operations at BHA is it appears that parachutists, from the very beginning of parachuting at BHA, understood that despite there being aircraft in the circuit when the drop was conducted, there was no risk of conflict and it was in accordance with either the Operational Regulations or, after January 2004, the instruments dealing with the conduct of those descents. Prior to the instruments being issued, many of the complaints resulted simply from the fact that parachutists were released while there were aircraft in the circuit.
110. Strictly speaking, those complaints were justified because it could not be said that the release of parachutists in those circumstances complied with the APF Operational Regulations. The airspace beneath the parachutists was not clear. In fact, one of the complainants repeatedly requested clarification of that issue.
111. The evidence indicates that as a result of those complaints, Instruments 34/04 and 36/04 were issued, making it clear that CASA did not consider there was a risk of conflict between parachutists and aircraft provided that the descent was conducted on the dead side of the circuit for the runway in use. However, this pre‑supposes a much greater degree of control by parachutists than is always possible. Mr Ribbands conceded as much in the cross-examination of Mr Ward when he asked him to agree that parachuting, to a certain degree, could be considered to be something of an inexact science. Mr Ward agreed. He also agreed with the proposition that a parachutist can be blown around by the wind in freefall and under canopy. That might result in entry into cloud or coming into conflict with aircraft in the circuit. There was ample evidence of that occurring.
112. Therefore, despite the best intentions of parachutists and aircraft, the mere fact that the drop zone is situated on the dead side of the runway in use does not alleviate the very real potential for conflict. In those circumstances, the parachutists rely on aircraft seeing them and avoiding them on the basis that power should give way to sail. As Mr McWilliam put it in a response prepared to allegations regarding parachuting operations in November 2003:
Where other traffic is believed to be in the area, the pilot shall broadcast when the drop is completed, and indicate the number of parachutes to be expected, so as to assist other pilots to see and avoid the drop aircraft and parachutists.
113. While I have no doubt that is the appropriate course to take where collision appears to be a serious risk, it should not and does not form the basis for the conduct of concurrent operations under either the APF Operational Regulations or the instruments. The Operational Regulations and instruments are designed to ensure, as far as it is possible to do so, separation between aircraft and parachutists, so that a potentially dangerous situation where avoiding action is required does not arise. Conflicts arose because, in my view, when parachutists were operating under the Operational Regulations, they misunderstood the requirement to only conduct a parachute descent when the airspace was clear and, when operating under the instruments, not being able to sufficiently control the descent to avoid aircraft activity in the circuit and on the ground. Putting aside the fact that some parachute descents were conducted through cloud, I do not consider Instruments 34/04 and 36/04 to establish satisfactory specifications for ensuring the safety of either operation. The reason is that unexpected wind conditions can be encountered at different levels on descent and, even with the most experienced parachutists, precise directional control cannot always be maintained. There is sufficient evidence of that in the many reports of parachutists landing some distance from the intended drop zone. While I accept Mr McWilliam’s evidence that very experienced parachutists can, in ideal conditions, make a very precise landing, that does not hold where weather conditions are not ideal and descents are made by less experienced parachutists. The evidence indicates that parachuting was often conducted in meteorological conditions which were less than ideal.
114. I am of course mindful of Mr Windsor’s evidence that the conduct of concurrent parachuting and general aviation activities at an airfield is not an uncommon practice, either in Australia or elsewhere. However, as Mr Ward said, where such operations are conducted concurrently, a high degree of co‑operation is required. The problem for parachutists at BHA is that not only is there a lack of co‑operation but there exists what can be properly described as two warring factions. According to Mr Ward, that creates a large potential safety problem. In my opinion, Mr Ward is absolutely correct. The potential for conflict between parachutists and aircraft in such an environment is unacceptably high. That is evidenced by the volume of complaints emanating from BHA and the physical confrontations which have taken place between the opposing groups. While I accept that in some circumstances it may be possible to reduce the conflict between descending parachutists and aircraft operating at an airfield by co‑operation and strict compliance with regulatory measures designed to ensure separation, that has not been the case at BHA. Further, there was no evidence that the dispute between the opposing factions is likely to abate at any time in the future. I am therefore satisfied and find that concurrent parachuting and general aviation activities at BHA do pose a serious risk to the safety of air navigation within the CTAF area at BHA.
A NEW AIRSPACE MODEL
115. A number of alternative airspace management models have been proposed by Mr McWilliam to enable his parachuting activities to continue at BHA. The first of these was presented to CASA at a meeting held in Canberra on 26 February 2004. A further model was proposed as a result of a mediated agreement between Mrs Begg and Mr McWilliam. Mr Jim Marcolin, General Manager, General Aviation Operations with CASA, formed the view that those models were not sufficient to ensure separation of aircraft and parachutists. Nevertheless, in his letter of 6 April 2005 which set out his reasons for issuing Instruments 130/05 and 131/05, he was prepared to consider revoking those instruments if operational procedures could be put in place that would ensure separation between aircraft and parachutists at BHA, and which did not rely entirely upon co‑operation between aircraft operators and the parachuting operator and/or parachutists to be effective. Mr Ribbands submitted that CASA’s willingness to consider revoking the instruments demonstrates that they were a stopgap measure.
116. In a letter dated 6 June 2005, CASA, after consulting with the parties again, developed an airspace model which it considered ensured adequate separation between parachutists and aircraft at BHA. Mr McWilliam’s solicitors responded to that proposal and suggested some modifications. However, on 10 June 2005 Mrs Begg wrote to CASA stating that the area known as the Windsock Paddock, which was previously the drop zone for parachutists, was no longer an option and she would not give permission for the area to be used for parachute landings. In summary, she said she would not agree to allow parachuting onto her property. Quite clearly, irrespective of any reasons given by Mrs Begg, that is her right. That is despite the fact that Mr McWilliam claims he has a lease granted by Mrs Begg which permits that activity.
117. By letter dated 1 August 2005 CASA informed the parties at BHA that it had considered the comments received by the interested parties to its proposed airspace model; however, having regard to the comments made by Mrs Begg and the safety of air navigation, CASA was not satisfied that the model it proposed should be implemented.
118. On 30 November 2007 Mr McWilliam’s solicitors provided CASA with a new proposed airspace model. It involved Mr McWilliam constructing a North/South runway on his property, adjacent to the North/South runway at BHA, some 300 metres to the East. At the time of hearing this matter, I was invited to take a view of the airfield and Mr McWilliam’s property. On doing so, I was shown the North/South runway constructed on Mr McWilliam’s property which was complete and in use. This was despite that fact that there is some controversy surrounding whether Mr McWilliam had planning approval to construct the runway.
119. I was also referred to an internal email from Mr Marcolin sent to other CASA officers on 21 June 2005. In that email, Mr Marcolin referred to Instruments 130/05 and 131/05 as a short term measure to remove potential safety threats while a longer term procedural solution could be developed. Mr Marcolin was critical of Mrs Begg for not providing specific reasons why she considered parachuting operations at BHA to be unsafe and for not being absolutely clear that she would not permit parachuting activity on her private land. In that email, Mr Marcolin said:
From what I have to date it is clear to me that CASA is being used to provide operational restrictions on a legitimate aviation activity, i.e. parachuting, for reasons other than legitimate safety grounds, albeit that this whole saga may have had it geneses based on some genuine safety concern.
120. Mr Ribbands submitted that I should give effect to the airspace model proposed by CASA in its letter of 6 June 2005 or, alternatively, give effect to the model proposed by Mr McWilliam’s solicitors. Mr Ribbands also submitted that I should set aside the decision under review and direct that CASA implement, within 7 days, an instrument that gives effect to the airspace model proposed by Mr McWilliam’s solicitors subject to CASA making any further amendments to that model that it deems necessary.
121. Mr Harvey submitted that the material dealing with various airspace models did not shed light on the reviewable decision and that this material should be disregarded in accordance with the decision in Shi. Alternatively, Mr Harvey submitted that the implementation of either airspace model proposed would be without utility in the present circumstances, as I understand it, because of Mrs Begg’s refusal to permit parachuting on her land. Additionally, because of the dispute between Mr McWilliam and the Greater Geelong City Council regarding planning approval for the runway which is in existence on Mr McWilliam’s property, it is not clear that he will ever be able to utilise the runway in the way proposed by his latest airspace model.
122. As I have expressed above, if I were to make a decision setting aside the reviewable decision and remitting the matter to CASA for reconsideration in accordance with directions that it make instruments which give effect to one or other of the airspace models, I would not be addressing the same question as the primary decision maker. In fact, such a decision would result in the AAT making a decision which is entirely different to that addressed by the primary decision maker, which was whether it was preferable to make an instrument applicable to BHA which varied the general instrument under which parachuting could lawfully be conducted by excluding that activity from taking place at BHA. Whether parachuting could be undertaken safely at BHA by issuing new instruments which gave effect to one or other of the suggested airspace models was not the question addressed by CASA when deciding to issue instrument 131/05. It follows that it is not the question which I am required to address in this application.
123. Even if I am wrong about Mr Ribband’s submissions regarding the interpretation of the decision in Shi and its application, I am not satisfied that either proposed airspace model would provide for safe concurrent parachuting and general aviation aircraft activities at BHA. The reason is that both models require substantial co‑operation between the conflicting interests. There was no evidence before me which would suggest that the level of animosity between the warring parties has altered in the past eight years. Therefore, I could not be confident at this time that the attitude of the participants has changed. In fact, I am satisfied it has not. Accordingly, in my view, the implementation of either proposed airspace model will merely result in a perpetuation of the dispute and endanger the safety of air navigation. It would not foster safe concurrent parachuting and general aviation activities at BHA.
FATAL PARACHUTE DESCENT
124. On 14 March 2004 a parachutist making a descent at BHA suffered equipment problems on descent, which resulted in her death. This unfortunate accident was the subject of a brief report prepared by the APF and also a detailed Coroner’s Report. CASA raised this accident for the purpose of demonstrating that Mr McWilliam did not have the capacity to ensure compliance by persons involved in parachuting at BHA with the relevant rules and regulations.
125. In the course of his evidence, Mr McWilliam said that his role in Skydive City’s parachuting operation was to run the business. Nevertheless, on the date of the fateful jump the parachutist, Ms Claire Barnes, expressed concerns about some stitching on her parachuting gear and sought advice from more experienced parachutists, including Mr McWilliam. Mr McWilliam said that he was unhappy with the condition of Ms Barnes’ equipment and told her to have it assessed by Mr Bayly, the Chief Instructor, before her next jump. When asked if he contacted Mr Bayly by mobile telephone to inform him of the possible problem, Mr McWilliam answered no. Mr McWilliam said that it was Ms Barnes’ responsibility to contact Mr Bayly, given her concerns. According to CASA, the significance of Mr McWilliam’s conduct in relation to this tragic event is that: first, he did not consider it part of his duty to ensure that Ms Barnes received proper advice from Mr Bayly; and secondly, that he considered Ms Barnes’ equipment did not pose a danger to her. According to CASA, having conveyed his opinion to Ms Barnes, coming as it did from a person as highly experienced in making parachute descents as Mr McWilliam, it is likely that she would have been influenced by Mr McWilliam’s view in deciding to jump without first conferring with Mr Bayly. Accordingly, CASA submitted that I could not be confident about the views expressed by Mr McWilliam regarding safety issues and that there was unlikely to be strict and diligent adherence to safety procedures in parachuting operations conducted by Mr McWilliam.
126. While this accident clearly highlighted the difficulties involved in ensuring the safety of participants in the sport of parachuting, I do not accept that it necessarily reflects on Mr McWilliam’s willingness to ensure compliance with rules and regulations. In my view, the incidents of jumping through cloud are a far stronger indicator of that.
CONCLUSION
127. In my opinion, the evidence overwhelmingly demonstrates there are substantial safety problems associated with the conduct of concurrent parachuting and general aviation activities at BHA. CASA’s principal focus must be to maintain the safety of air navigation in the airspace above BHA. While I accept it may be possible to conduct concurrent parachuting and general aviation activities at an airfield, this can only occur safely where there is a rigid adherence to regulations which have been made to ensure the separation of the participants in those activities. In fact, because parachuting is by its very nature an activity which is subject to the vagaries of weather, and in particular the wind, even strict compliance with regulatory procedures may not be sufficient at times to keep those activities apart. Therefore, it is imperative that there be a very sound relationship between the groups involved in the different activities at an airfield so that a co‑operative approach can be relied upon to ensure separation in the event of inadvertent breaches of regulations. Unfortunately, there is no evidence of any such co‑operation at BHA.
128. The evidence indicates to me that the lack of co‑operation has its genesis in the clear disregard by parachutists for the prohibition placed on jumping through cloud and when weather conditions were less than suitable for that activity. General aviation operators were understandably concerned when they were unexpectedly placed in conflict situations. When the general aviation users of BHA complained about this activity, rather than Mr McWilliam taking positive steps to ensure strict regulatory compliance, he adopted a defensive approach, simply denying any wrongdoing. In my opinion, that was the root cause of the problem. From there it escalated to the point where civil relationships between the two groups of airspace users completely broke down. In turn, that resulted in an avalanche of complaints from general aviation users of BHA. Those complaints continued while parachuting operations were permitted at BHA. In fact, the evidence is that relationships have not improved since April 2005, when parachuting activities at BHA last ceased.
129. It is my view that when CASA decided to issue Instrument 131/05, it did so as a result of a genuine concern for the safety of all participants in aviation activities at BHA and in accordance with its Charter to regard the safety of air navigation as the most important of considerations. CASA has also acted in accordance with its policy requiring it to place the interests and safety of general aviation ahead of the recreational pursuit of parachuting. It is not to the point to suggest that there are airspace models which may ensure separation between the various participants. Those activities, even under the proposed airspace models, would nevertheless take place with very little separation between them. If a new airspace model were implemented, safe operations would require substantial co‑operation between the various users of the airspace in the BHA area. I have no doubt that the present situation at BHA has deteriorated to such an extent that co-operation between parachutists and general aviation is out of the question. Therefore, even if it were permissible for me in this case to remit the matter to CASA with the direction that it considers the proposed airspace models, I am not inclined to do so.
130. CASA’s decision to issue Instrument 131/05 was the preferable decision and it is affirmed.
I certify that the one hundred and thirty [130] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
(sgd) Mara Putnis
Clerk
Dates of Hearing 3 – 7 March 2008 and 13 – 14 March 2008
Date of Decision 6 August 2008Counsel for the applicant Mr J. Ribbands
Solicitor for the applicant Heydon and O’Loghlen
Counsel for the respondent Mr I. Harvey
Solicitor for the respondent Civil Aviation Safety Authority Legal Services Group
1
12
0