McWilliam and Civil Aviation Safety Authority
[2004] AATA 176
•20 February 2004
CATCHWORDS – JURISDICTION
– AVIATION – whether reviewable decision – whether variation of an authorisation given in a permission granted under the regulation – partial jurisdiction.
Civil Aviation Act 1988 ss. 3, 9, 13, 31 and 98
Civil Aviation Regulations 1988 rr. 2B, 7, 92, 152, 297A, 301 and 302
Administrative Appeals Tribunal Act 1975 ss. 25, 27, 29 and 33 to 38
Air Navigation Orders Order 82.0
Air Navigation Regulations
Air Navigation Act 1920
Civil Aviation Orders Part 82
Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1
Re Seaview Lord Howe Pty Ltd and Another and Civil Aviation Authority (1995) 38 ALD 422
DECISION AND REASONS FOR DECISION [2004] AATA 176
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2004/182
GENERAL ADMINISTRATIVE DIVISION )
Re LUKE McWILLIAM
Applicant
AndCIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 20 February, 2004
Place: Melbourne
Decision: The Tribunal:
1.the decision to revoke Instrument No. CASA 34/04 and to issue Instrument No CASA 63/04 is not a reviewable decision within the meaning of s. 31 of the Civil Aviation Act 1988; and
2.the decision to revoke Instrument No. CASA 36/04 and to issue Instrument No. CASA 64/04 is a reviewable decision within the meaning of s. 31 of the Civil Aviation Act 1988; and
adjourn further consideration to a date to be fixed.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 16 February, 2004, the applicant, Mr Luke McWilliam, applied for review of Instruments No. 63/04 and No. 64/04 issued by the respondent, the Civil Aviation and Safety Authority (“CASA”) on 13 February, 2004. In general terms, each instrument related to parachute operations. The initial question to be decided is whether the Tribunal has jurisdiction to review those instruments. Submissions were made by Mr Langmead SC on behalf of Mr McWilliam and by CASA’s advocate, Mr Anastasi.
THE ISSUE
The issue in this case is whether CASA has made a “reviewable decision” of which Mr McWilliam may seek review pursuant to s. 31 of the Civil Aviation Act 1988 (“the Act”).
BACKGROUND
The Tribunal’s jurisdiction
Resolution of the issue depends upon the extent of the Tribunal’s jurisdiction. Section 25 of the Administrative Appeals Tribunal Act 1975, (“AAT Act”) is fundamental to any consideration of the Tribunal’s jurisdiction to review a decision. Section 25(1) provides that:
“An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment.”
Sub-section 25(4) provides the necessary corollary to this sub-section when it provides that the “... Tribunal has power to review any decision in respect of which application is made to it under any enactment.” Other sections in Part IV of the AAT Act provide for such matters as those who may apply to the Tribunal (AAT Act, s. 27), the time and manner within which they may do so (AAT Act, s. 29) and the procedure of the Tribunal and its powers associated with procedural aspects (e.g. AAT Act, ss. 33 to 38).
The Act is an enactment referred to in s. 25 of the AAT Act. Section 31(2) of that Act provides that an application may be made to the Tribunal for review of a “reviewable decision”. The expression “reviewable decision” is defined in s. 31(1) to mean:
“(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.”
An overview of the Act
Part II of the Act is concerned with the functions and powers of CASA and the context in which it must perform or exercise them. Section 9 of the Act sets out CASA’s functions. Among its function are those:
“… of conducting the safety regulation of the following, in accordance with this Act and the regulations:
(a)civil air operations in Australian territory;
(b)the operation of Australian aircraft outside Australian territory;
by means that include the following:
(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, registration and permits;
(f)…
(g)…
(h)…” (s. 9(1))
The expression “aviation safety standards” is defined in s. 3(1) to mean:
“… standards relating to the following:
(a)the flight crews engaged in operations of aircraft;
(b)the design, construction, maintenance, operation and use of aircraft and related equipment;
(c)the planning, construction, establishment, operation and use of aerodromes;
(d)the establishment and use of airspace;
(e)the planning, construction, establishment, maintenance, operation and use of:
(i)facilities of the kind referred to in paragraph 8(1)(a) of the Air Services Act 1995; and
(ii)services of the kind referred to in paragraph 8(1)(b) of the Air Services Act 1995; and
(iii)services of the kind referred to in paragraph 6(1)(b) of the Australian Maritime Safety Authority Act 1990 to the extent that those services use aircraft;
and any construction associated with those facilities or services;
(f)the personnel engaged in:
(i)the maintenance of aircraft and related equipment: or
(ii)anything referred to in paragraph (c) or (e).”
In general terms, CASA has power to do all things that are necessary or convenient to be done for, or in connection with, the performance of its functions (s. 13(1)).
Part III of the Act, which is concerned with the regulation of civil aviation, is divided into three general categories: general regulatory provisions (Division 1), Air Operators’ Certificates (“AOCs”) (Division 2) and general offences in relation to aircraft (Division 3). Part IIIA is concerned with CASA’s powers of investigation and the remaining parts of the Act with administrative matters concerning the operation of CASA.
An overview of the Regulations and Instruments issued by CASA
Section 98 of the Act authorises regulations to be made provided they are not inconsistent with that legislation. These are found in the Civil Aviation Regulations 1988 (“the Regulations”). Apart from regulations regarding the administration and organisation of CASA, the regulations are concerned with subjects such as registration and marking of aircraft, airworthiness requirements, maintenance, the reporting of defects in Australian aircraft, qualifications of flight crew, navigation logs, radio systems for use in, or in connection with, aircraft, aerodromes, air traffic services and other services, conditions of flight, rules of the air, signals for the control of air traffic, air service operations and dangerous goods.
Regulation 92 comes within Part IXA dealing with aerodromes and, more specifically, within Division 8 dealing with the use of aerodromes. It provides that:
“(1) A person must not land an aircraft on, or engage in conduct that causes an aircraft to take off from, a place that does not satisfy one or more of the following requirements:
(a)the place is an aerodrome established under the Air Navigation Regulations;
(b)the use of the place as an aerodrome is authorised by a licence granted under regulation 89C;
(c)the place is an aerodrome for which an arrangement under section 20 of the Act is in force and the use of the aerodrome by aircraft engaged in civil air navigation is authorised by CASA under that section;
(d)the place (not being a place referred to in paragraph (a), (b) or (c)) is suitable for use as an aerodrome for the purposes of the landing and taking-off of aircraft;
and, having regard to all the circumstances of the proposed landing, or take-off (including the prevailing weather conditions), the aircraft can land at, or take-off from, the place in safety.
Penalty: 25 penalty units.
(2)CASA may, in relation to an aerodrome, issue directions relating to the safety of air navigation.
(3)A person must not contravene a direction.
Penalty: 25 penalty units.”
On 29 January, 2004, Mr Anthony John Rothwell, General Manager of the Aviation Infrastructure and Sport Aviation Branch of CASA, issued Instrument No. CASA 34/04 (“Instrument 34/04”) under r. 92(2).. The directions related to the safety of air navigation in relation to Barwon Heads aerodrome in Victoria. They applied to the pilot in command of an aircraft engaged in an operation involving the descent of parachutists within a two mile radius of the Barwon Heads aerodrome. Mr Rothwell stated that the directions took priority over any authorisation or specification issued under r. 152 of the Regulations other than an authorisation or specification specifically applicable to operations at, or in the vicinity of, the Barwon Heads aerodrome. The directions set out in Instrument 34.04 were:
“1. The pilot in command of an aircraft engaged in a parachute operation 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 cloud; or
(b)having a flight visibility of less than 3 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:
(a)the pilot in command has, not less than 2 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 expected to commence; and
(b)after making the broadcast referred to in paragraph (b) – 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 2 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.”
On 13 February, 2004, Mr Rothwell revoked Instrument 34/04 when he issued Instrument CASA 63/04 (“Instrument 63/04”). In Instrument 63/04, he issued another direction in relation to the Barwon Heads aerodrome and stated that it applies to the pilot in command of an aircraft engaged in an operation involving the descent of parachutists. It takes priority over any authorisation or specification issued under r. 152. The direction is that:
“The pilot in command of an aircraft engaged in a parachute operation must not permit a person to exit the aircraft to conduct a parachute descent within a 2 mile radius of Barwon Heads aerodrome.”
Regulation 152 comes within Part X which is headed “Conditions of Flight”. More specifically, it comes within Division 2 of that Part, which is concerned with flight rules. Until 6 August, 2003, r. 152 provided that:
“Parachute descents, other than necessary emergency descents, shall not be made unless authorised and conducted in accordance with the written specifications of CASA.”
Penalty: 25 penalty units.”
Since 6 August, 2003 r. 152 has provided that:
“(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.”
On 23 July, 2003, Mr William John McIntyre, Executive Manager of Aviation Safety Standards in CASA, issued Instrument No. CASA 309/03 (“Instrument 309/03”) under r. 152. He revoked a previous CASA instrument and then:
“(b) authorised[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 3 March 2003 (APF Operational Regulations) and approved by CASA; and
(c)direct 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.”
On 29 January, 2004, Mr Rothwell issued Instrument CASA 36/04 (“Instrument 36/04”). In that instrument, he issued “authorisation and specifications in respect of parachute descents within 2 miles radius of Barwon Heads aerodrome …”. Mr Rothwell continued:
“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 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 in use at the time; or
(b)using any runway, flight strip, apron or taxiway at the aerodrome.
4.A person must not conduct a parachute descent:
(a)into or through cloud; or
(b)when the flight visibility at all altitudes below the aircraft is less than 3 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 1,000 feet below any cloud formation.”
On 13 February, 2004, Mr Rothwell revoked Instrument 36/04 when he issued Instrument CASA 64/04 (“Instrument 64/04”). In doing so, he issued a “… specification in respect of parachute descents” and continued:
“The specification in Schedule 1 applies to a person who is a member of the Australian Parachute Federation Inc or the Australian Skydiving Association.
In case of any inconsistency, this specification takes 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
SPECIFICATION
1.A person must not conduct a parachute descent within 2 miles radius of Barwon Heads aerodrome, Victoria (location indicator YBRS, reference point South 38015.5’, East 144026.0’).”
Regulation 297A(2) provides that an application may be made to the Tribunal for review of a “reviewable decision”. The expression “reviewable decision” is defined in r. 297A(1) to mean any one of decisions or refusals described in its 34 paragraphs. None of the decisions or refusals in those paragraphs refers to rr. 92(2) or 152 and neither Mr Langmead nor Mr Anastasi submits that the Tribunal has any jurisdiction in this case as a result of the application of r. 297A(1).
SUBMISSIONS
Mr Langmead submitted that parachuting is permitted only if it has been authorised by CASA under r. 152 of the Regulations. There are two paths by which that authorisation may be given. One is to take the path to the Australian Parachute Federation Inc (“APF Inc”) as CASA has given it delegated authority to authorise parachute descents. The second path is to approach CASA itself for authorisation.
The issues in this case, Mr Langmead said, relate to the co-existence of parachuting and general aviation near the Barwon Heads aerodrome. All interested parties had met at Barwon Heads on 28 January, 2004 and it was agreed that there would be no aeroplanes in a designated area measured from the aerodrome. There was a further division in that designated area between the area that could be used by student parachutists and that used by parachutists descending in tandem. There have been allegations regarding the use of the designated area. The allegations are denied.
Mr Langmead noted that Instrument 64/04 is not directed to an individual but submitted that there is no requirement in s. 31 that a reviewable decision need only be directed to one individual. Even though directed to more than one, it is properly characterised as the cancellation of an authorisation contained in a permission or permit within the meaning of s. 31(1)(b).. The predecessor of Instrument 64/04, Instrument 36/04, properly recognised that it was an authorisation when Mr Rothwell stated in the preamble that he issued “the … authorisation and specifications in respect of parachute descents” set out in the remainder of the instrument.
Mr Anastasi submitted that Instrument 63/04 made under r. 92 is a direction that CASA can make about the use of an aerodrome. It is not a direction directed to an individual person or entity and is not in the nature of a permission. Rather, it is in the nature of a prohibition. Instrument 64/04 is made under r. 152 and it too is in the nature of a prohibition as it specifies the manner in which parachute descents may be made by members of APF Inc and the Australian Skydiving Association (“ASA”). Neither of the Instruments can be characterised as a “certificate, permission, permit or licence” within the meaning of s. 31 of the Act. Neither of the decisions to issue those Instruments can be characterised as a “refusal to grant or issue, or a cancellation, suspension or variation” of anything let alone a “certificate, permission, permit or licence” within the meaning of s. 31(1)(a).. Nor can either be characterised as the “imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation contained …” in anything let alone in a “certificate, permission, permit or licence” within the meaning of s. 31(1)(b).
Mr Anastasi referred to an extract from paragraph 19 of the decision of O’Connor J in Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118 when she considered whether the Tribunal had jurisdiction to review a decision cancelling the approval of Surf Air’s Chief Pilot. Surf Air’s Chief Pilot had been approved pursuant to Order 82.0 of the Air Navigation Orders.. Those Orders had been made under the Air Navigation Regulations (“AN Regulations”) made under the Air Navigation Act 1920 (“AN Act”). Order 82.0 required the holder of an air service licence to satisfy the Secretary that, among other matters, the person it nominated as its Chief Pilot had been approved by the Secretary and that he or she meet the requirements it specified. It also provided that an approval as Chief Pilot could be cancelled or suspended if the Secretary was of the opinion that the person’s performance as Chief Pilot was no longer of an acceptable standard. The AN Act and the AN Regulations were later repealed and replaced by the Act and Regulations. The approval of Surf Air’s Chief Pilot had been given after that had happened as did its cancellation. O’Connor J decided that Order 82.0 had not been continued under the scheme established by the Act and Regulations. Therefore, the approval and the subsequent cancellation were without legislative foundation. Applying the principles in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 (Bowen CJ, Smithers and Deane JJ), O’Connor J decided that the Tribunal’s jurisdiction was not denied on the basis that the decision was a nullity.
Her Honour then considered whether the decision was reviewable under s. 31(1) of the Act and said:
“(19) I am of the view that the decision in question in this case does not fall within s 31(1)(b). An approval as chief pilot is not a ‘condition’ or ‘authorisation’ contained in the certificate, permission, permit or licence. It is rather a separate instrument, although it may well have a practical effect on the holder of a licence or certificate in so far as flight operations are not permitted unless a properly approved person is appointed as chief pilot. Mr Jorm’s third argument [for the Civil Aviation Authority] concerning the Tribunal’s jurisdiction related to the words ‘under this Act or the regulations’ in s 31(1)(a). While I am of the view that an ‘approval’ may come within a ‘permit or permission’, the decision to cancel the approval in this case was not made under the Act or regulations. It was made under an order. The decision is thus not reviewable by this Tribunal as it does not come within the definition of reviewable decision in s 31(1).” (page 122)
Mr Langmead referred to a subsequent decision by Mathews J in Re Seaview Lord Howe Pty Ltd and Another and Civil Aviation Authority (1995) 38 ALD 422. Her Honour considered whether the Tribunal had jurisdiction to review a decision suspending an approval as a Chief Pilot. The decision to suspend was taken under Part 82 of the Civil Aviation Orders, which had been made under s. 98(4A) of the Act. It was a condition of the Air Operator’s Certificate (“AOC”) held by Seaview Lord Howe Pty Ltd (“Seaview”) that it have a Chief Pilot approved by the then Civil Aviation Authority (“CAA”). The effect of the suspension of the Chief Pilot approval was to suspend Seaview’s AOC. Mathews J said:
“ I agree with O’Connor J that the approval of a chief pilot constitutes a ‘permission’ or ‘permit’ – more probably the former – under s 31(1)(a) of the Act. The question then is whether the approval was granted or issued ‘under the Act or the regulations’ so as to enable its suspension to be reviewable under s 31(1)(a).” (page 425)
She then concluded that decisions made under the Civil Aviation Orders had to be construed as decisions under the Act for the Civil Aviation Orders had themselves been made under the Act. The two should be construed as the one enactment.
CONSIDERATION
Although O’Connor J and Mathews J disagreed on whether an approval had been made under the Act as required by s. 31(1)(b), they did not disagree on an approval’s being a “permit or permission”. What is clear from their consistent approach in that regard is that CASA’s decision or action must be properly characterised to determine whether or not it comes within the terms of the definition of a “reviewable decision” in s. 31(1) of the Act.
In order to carry out that characterisation, it is necessary to ask three questions. The first question is whether there has been a decision of some sort in relation to a “certificate, permission, permit or licence”. If so, the second is whether that “certificate, permission, permit or licence” was “granted or issued under this Act or the regulations”.. The third question is whether the decision that has been made may be characterised as either:
“a refusal to grant or issue, or a cancellation, suspension or variation of …”; (s. 31(1)(a)) or
“the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation, contained in …” (s. 31(1)(b))
that “certificate, permission, permit or licence granted or issued under this Act or the regulations”.
In answering the first question, I will first consider the meaning of each of the words “certificate, permission, permit or licence”.. Each is used as a noun and their ordinary meanings, in so far as they are relevant, are given in The New Shorter Oxford English Dictionary (1993) as:
certificate: “… 1 The action or fact of certifying or giving assurance; certification, attestation. … 2 A document in which a fact is formally certified or attested; esp. one formally attesting status, medical condition, abilities, fulfilment of requirements, ownership of shares, etc.; a licence. …”
permission“… 1 The action of permitting, allowing, or giving consent; liberty or licence to do something; leave. … 2 A (formal) consent or authorization; esp. a document giving this, = PERMIT n. 2. …”
permit“… 1 (Formal) permission. … 2 A document giving permission to do a specified thing; a warrant, a licence. …”
licence“… 1 Liberty, esp to do something; leave, permission. … 2 Formal, usu. printed or written, permission from an authority to do something (esp. marry, print or publish a book, preach, drive on a public road, or carry on some trade) …, or to own something …; a document giving such permission; a permit. …”
It is apparent that each word may mean either the action of certifying, permitting, giving permission or giving leave as the case may be or it may refer to a document evidencing what has been certified, permitted, or given leave to do. Having regard to both ss. 31(1)(a) and (b) and particularly to the reference in s. 31(1)(b) to the “authorisation contained in such a certificate, permission, permit or licence”, I have concluded that reference is made to the document and not to the action. I am reassured in this conclusion by the requirements that every holder of a licence, certificate or other document issued, or required to be kept, under the regulations must surrender it (r. 301) or produce it on demand (r. 302) in accordance with the regulations. The reference is clearly to the document and not to the act of certifying, permitting, giving permission or giving leave as the case may be. In accordance with the noscitur a sociis rule, the remaining words, “permit” and “permission”, must be coloured by their association with the words “certificate” and “licence” and so must also be read as references to the documents rather than to the acts of permitting or giving permission.
Taking Instruments 63/04 and 34/04 first, may either be regarded as a “certificate, permission, permit or licence”? Each gives directions to the pilot in command of an aircraft engaged in a parachute operation. It does so under r. 92(2) which permits CASA to give directions relating to the safety of air navigation. Those directions limit the pilot in so far as he must comply with the directions but it cannot be said that they attest to his or her status or that they permit, allow or give him or her liberty or permission to engage in the operations that are the subject of the instruments. Rather, they assume that the pilot is properly authorised to engage in those operations but set the parameters within which he or she may operate. An analogy may be drawn between the pilot’s authorisation and the directions made under r. 92(2) and a licence to drive a vehicle on a roadway and the road rules. The motorist must hold a licence appropriate to the type of vehicle he or she wishes to drive but that licence does not permit him or her to drive how and where he or she pleases. He or she is limited by the road rules. The road rules are not the person’s licence to drive and a change in the road rules does not change his or her being licensed even though how and where he or she drives may be affected by a change in those road rules.
This interpretation is consistent with the way in which CASA’s functions are expressed in s. 9 of the Act. Among others, it has a function to develop and promulgate aviation safety standards and another to issue certificates, licences, registrations. The two functions, of course, are not necessarily exclusive of each other or of CASA’s other functions set out in s. 9. In the case of the matters addressed in rr. 92(2), they are clearly directed to CASA’s function of developing and promulgating aviation safety standards. Regulation 92(2) is concerned with the use of aerodromes as set out in paragraph (c) of the definition of “aviation safety standards” in s. 3 of the Act and the use of airspace as set out in paragraph (d) of that definition. It is not concerned with the authorisation of any person, or group of persons, however that authorisation is expressed. The direction is in the nature of a prohibition and breach of it is an offence attracting a penalty under r. 92(3).
It follows that neither Instruments 63/04 nor 34/04 is a “certificate, permission, permit or licence”.. Consequently, I am unable to answer the first question in the affirmative and I am unable to conclude that the decision revoke Instrument 34/04 and to issue Instrument 63/04 constitutes a reviewable decision within the meaning of s. 31(1) of the Act.
Turning to Instruments, 64/04 and 34/04, each issues specifications in respect of parachute descents and does so pursuant to r. 152. As drafted up to 6 August, 2003 r. 152 referred to parachute descents’ not being made “unless authorised and conducted in accordance with the written specifications of CASA”.. Although not initially clear, the regulation should be read as not permitting parachute descents unless authorised and unless conducted in accordance with CASA’s written specifications. The alternative reading of not permitting them unless authorised in accordance with CASA’s written specifications and conducted in accordance with those specifications does not seem to lead to a sensible result.
In the instruments it made under r. 152 in its now repealed form, CASA seems to have taken the view that it was required to link the authorisation and the specifications and to do so in the one instrument. The result has been that Instrument 309/03 and Instrument 36/04 gave an authorisation but expressed that authorisation in terms of every member of the APF Inc’s being authorised to make a parachute descent in accordance with specifications described in the instrument. Instrument 309/03 and Instrument 36/04 is each a permission. Each allows or gives consent to a person to make a parachute descent if he or she does so in accordance with the specifications set out in the instrument.
Instrument 309/03 is not site specific. Its specifications are those set out in a document known as the “Operational Regulations” prepared by APF Inc and approved by CASA. In accordance with r. 7 CASA has delegated powers under r. 152 to APF Inc but that does not mean that it may not also exercise powers under that regulation. Delegation of its power does not exhaust CASA’s power. In making Instrument 36/04, it exercised that power and this time it did so in relation to a specific site i.e. the Barwon Heads aerodrome. It authorised members of the APF Inc and ASA to make parachute descents in the vicinity of the Barwon Heads aerodrome only if they complied with specifications relating to that location and set out in the instrument.
Whether or not it can be said that Instrument 64/04 is properly characterised as a permission is another question. It does not purport to authorise any person but simply to give specifications. Again, it is made in relation to a specific site (i.e. Barwon Heads) but it was made under r. 152 as in force on and after 6 August, 2003. In that form, r. 152 clearly separates authorisation of a person to make a parachute descent and the manner in which that authorised person makes the parachute decent. I will not dwell on this matter for it is not necessary to consider in these proceedings whether Instrument 64/04 is a permission. What will be necessary to ask is the effect of Instrument 64/04 upon the permission previously given in Instruments 309/03 and 36/04.
Before doing so, I must ask, the second question in relation to Instrument 309/03 and Instrument 36/04. That is whether they were granted or issued under the Act or Regulations. That question must be answered in the affirmative for they were clearly made under r. 152 in one of the forms, namely an instrument, permitted by r. 2B.
As I have said, Instrument 64/04, which revoked Instrument 36/04, makes no mention of authorising any person to make parachute descents but limits itself to making specifications relating to parachute descents in the vicinity of the Barwon Heads aerodrome. The more general provisions of Instrument 309/03 remain in force subject only to their yielding, in the case of inconsistency, to Instrument No. 64/04. In revoking Instrument No. 36/04, it seems to me that Instrument No. 64/04 must be construed as at least varying the authorisation that was given in the earlier instrument. That would mean that there is a reviewable decision within the meaning of s. 31(1)(b) of the Act in so far as the decision to revoke Instrument 36/04 and to issue Instrument 64/04 is concerned.
That, however, is not an end of the matter. Mr McWilliam is a pilot rather than a person who has been authorised pursuant to Instrument 36/04. Consequently, there must be asked the question whether he is a person whose interests are affected by the decision within the meaning of s. 27 of the AAT Act. This may be a question that the parties are able to answer without reference to the Tribunal for further determination. A further question must also be asked. That is whether there can be any merit in the Tribunal’s reviewing the decision and, if not, whether the application is frivolous or vexatious within the meaning of s. 42B of the AAT Act.. That question would arise from the fact that, even if Mr McWilliam were successful in having the decision to revoke Instrument 36/04 and to make Instrument 64/04 varied, the specification in Instrument in 63/04 would remain as it is not reviewable. On one view, the practical outcome could be that a person would be authorised to make a parachute descent in an area in which a pilot in command of an aircraft engaged in a parachute operation could not permit him or her “to exit the aircraft to conduct a parachute descent”. This is a question that the parties must consider.
For the reasons I have given, I decide that:
1.the decision to revoke Instrument No. CASA 34/04 and to issue Instrument No CASA 63/04 is not a reviewable decision within the meaning of s. 31 of the Civil Aviation Act 1988; and
2.the decision to revoke Instrument No. CASA 36/04 and to issue Instrument No. CASA 64/04 is a reviewable decision within the meaning of s. 31 of the Civil Aviation Act 1988; and
adjourn further consideration to a date to be fixed.
I certify that the thirty-eight preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: ................................................................
R. Crook Associate
Date of Jurisdiction Hearing 18 February, 2004
Date of Decision 20 February, 2004
Counsel for the Applicant Mr J. Langmead SC
Solicitor for the Applicant Grundy Maitland & Co LawyersSolicitor for the Respondent Mr A. Anastasi
Civil Aviation Safety Authority
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