Royal Queensland Aero Club ACN 009 660 806 v Civil Aviation Safety Authority
[2000] FCA 848
•22 JUNE 2000
FEDERAL COURT OF AUSTRALIA
Royal Queensland Aero Club ACN 009 660 806 v Civil Aviation Safety Authority
[2000] FCA 848ADMINISTRATIVE LAW - whether flight crew rating issued by Civil Aviation Safety Authority (CASA) delegate on basis of test conducted by delegate in breach of condition of relevant delegation is a valid civil aviation authorisation - de facto officer doctrine - ratings issued by a CASA delegate in breach of condition of delegation - whether issued rating valid or not
Judiciary Act 1903 (Cth)
Civil Aviation Act 1988 (Cth)
Civil Aviation RegulationsProject Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 cited
He Kaw Teh v The Queen (1985) 157 CLR 523 referred to
Bond v R (2000) 169 ALR 607; [2000] HCA 13 referred to
Re Language Rights under Manitoba Act 1870 (1985) 19 DLR (4th) 1 followedROYAL QUEENSLAND AERO CLUB ACN 009 660 806 AND DONALD GEORGE MITCHELL v CIVIL AVIATION SAFETY AUTHORITY
Q 244 OF 1999DRUMMOND J
22 JUNE 2000
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 244 OF 1999
BETWEEN:
ROYAL QUEENSLAND AERO CLUB ACN 009 660 806
FIRST APPLICANTDONALD GEORGE MITCHELL
SECOND APPLICANTAND:
CIVIL AVIATION SAFETY AUTHORITY
RESPONDENT
JUDGE:
DRUMMOND J
DATE OF ORDER:
22 JUNE 2000
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The first applicant’s application be dismissed.
THE COURT DECLARES THAT:
2.The second applicant’s command instrument rating renewed on 1 October 1998 is a valid civil aviation authorisation for the purposes of the Civil Aviation Act 1988 (Cth) and the Civil Aviation Regulations notwithstanding that it was issued on the basis of the second applicant having passed a flight crew test conducted by a delegate of the Civil Aviation Safety Authority in breach of a condition of his delegation.
THE COURT FURTHER ORDERS THAT:
3.The respondent pay both applicants’ costs of and incidental to the proceedings, except the first applicant’s costs of and incidental to the hearing for interlocutory relief on 19 October 1999.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 244 OF 1999
BETWEEN:
ROYAL QUEENSLAND AERO CLUB ACN 009 660 806
FIRST APPLICANTDONALD GEORGE MITCHELL
SECOND APPLICANTAND:
CIVIL AVIATION SAFETY AUTHORITY
RESPONDENT
JUDGE:
DRUMMOND J
DATE:
22 JUNE 2000
PLACE:
BRISBANE
REASONS FOR JUDGMENT
The Royal Queensland Aero Club (“the Club”) applied, under s 39B(1A)(c) the Judiciary Act 1903 (Cth), for a declaration that licences and ratings issued by one Garth Harris between 30 April 1998 and 7 April 1999 on behalf of the Civil Aviation Safety Authority (“CASA”) are duly issued licences and ratings under the Civil Aviation Regulations.
Mr Harris was the Club’s Chief Flying Instructor and Chief Pilot from July 1995 to 22 April 1999. He has had extensive flying and flight instructing experience. While employed by the Club, Mr Harris held a delegation given him by the Director of Aviation Safety on behalf of CASA. The first delegation of present relevance, Instrument No: CASA 135/1996, was given on 23 June 1996 by the Acting Director of Aviation Safety under reg 7 the Civil Aviation Regulations. Regulation 7 provides:
“(1)The Director may, in writing, delegate to a person all or any of CASA’s powers and functions under these regulations.
(2)A delegation may be made subject to conditions that are necessary in the interests of the safety of air navigation.
(3)A delegate is subject to any written direction of the Director in the exercise of a power, or the performance of a function, delegated under subregulation (1).”
By this instrument, the Acting Director delegated to Mr Harris CASA’s powers and functions:
“(a)under subregulation 5.14(2) of the Civil Aviation Regulations; and
(b)under regulation 5.19 of the Civil Aviation Regulations relating to the conduct of flight tests in relation to a command (multi-engine aeroplane) instrument rating subject to him:
(i)continuing to hold a current grade 1 flight instructor (aeroplane) rating; and
(ii)holding a current command (multi-engine aeroplane) instrument rating; and
(iii)holding an aircraft endorsement in relation to the aircraft in which the flight test is to be conducted; and
(c) …
(d) …
(e) …”
The instrument of delegation also stated:
“For the purposes of this instrument, a rating is a current rating if:
(a)under the Civil Aviation Orders, the rating is current; and
(b)the rating was issued or was last renewed on the basis of a flight test conducted:
(i)by a CASA flying operations inspector; or
(ii)by a person nominated by a District Flight Operations Manager to conduct the flight test.
The delegations:
(a)start having effect at the beginning of July 1996; and
(b)stop having effect at the end of June 1997.”
By Instrument No: CASA 98/1997 dated 3 June 1997, the Acting Director of Aviation Safety of CASA varied this delegation to substitute for the date of its cessation “the end of June 1998”.
The instrument of June 1996 conferred on Mr Harris a number of discrete delegations. These included a delegation of CASA’s functions under reg 5.14(2), of issuing flight crew ratings provided for by the regulatory scheme, and a separate delegation of CASA’s functions under reg 5.19, of conducting the flight tests prescribed to be passed before such ratings can be issued.
Mr Harris’ delegation under reg 5.19 was expressed to be subject to, among other things, him continuing to hold a current grade 1 flight instructor rating. The particular instructor rating which Mr Harris held when he was given the June 1996 delegation expired on 30 April 1998. He did not advert to that at the time. CASA failed to pick up its expiry. The Acting Director of Air Safety, by Instrument No: CASA 203/98 dated 26 June 1998, further varied Mr Harris’ delegation to extend its date of cessation to “end of June 1999”, ie, CASA extended the period of the delegation from 30 June 1998 to 30 June 1999 nearly two months after Mr Harris’ grade 1 flight instructor rating had expired.
It was not until 1 April 1999 that Mr Harris discovered this deficiency. He immediately notified a senior officer of CASA. A short while later, on 7 April 1999, he was retested and regained his grade 1 flight instructor’s (aeroplane) rating. CASA did not revoke Mr Harris’ then current delegation. There matters rested until mid September 1999, when CASA became concerned at the possible invalidity of licences and ratings issued by Mr Harris to Club clients in the period between 1 May 1998 and 6 April 1999 while Mr Harris did not hold the necessary instructor’s rating. Mr Harris had, during this period, conducted flight tests of many clients of the Club in reliance on the delegation he held from CASA. On the basis of their having passed these tests, Mr Harris also issued authorisations prescribed by the regulatory scheme to them. Many of the persons he so licensed and rated in this period have engaged in activities in the aviation industry which can, by force of s 20AB of the Act, only lawfully be undertaken under the legislative scheme by a person appropriately licensed or rated.
On 24 September 1999, CASA informed the Club that it considered that “all ratings issued to, flight tests undertaken by and dual time logged by Mr Harris’ students … during the relevant period are invalid”. However, the only action it then decided was necessary to deal with the problem in the interests of safety was to notify all such students of CASA’s view, in the expectation that the Club would implement CASA’s “preferred option” of taking “primary responsibility for remedying the problem” by informing the students in question of the problem. CASA observed that “this would assist to minimise the public relations impact on the Club and also minimise the impact on CASA’s resources”. CASA concluded that, if it was satisfied that “all affected persons have been identified and properly notified of the invalidity of their rating, flight test and/or dual flying hours, it will not engage in a more prescriptive course of action”. Discussions between CASA and the Club ensued. CASA’s attitude hardened. On 5 October 1999, it informed the Club that if it did not notify persons CASA considered were affected by the defect in Mr Harris’ authority to conduct tests and thus to issue valid licences, ratings etc, it would itself notify all affected persons and inform them if they continued to fly in reliance on such licences and ratings issued by Mr Harris, they would be subject “to CASA’s normal compliance and enforcement measures”. Ultimately, the Club commenced these proceedings on 7 October 1999 for the declaration referred to and for an interlocutory restraint to stop CASA contacting the “affected persons” it referred to in its 24 September 1999 letter to tell them of its view as to the invalidity of their various flight authorisations.
A significant part of the Club’s business consists of pilot and aircrew training. Successful completion of flight training provided by the Club, evidenced by their passing the tests prescribed in the Civil Aviation Regulations, entitles its clients to be issued with one or more of the various licences and ratings required by the Civil Aviation Act 1988 (Cth) and the Regulations. That Mr Harris carried out these testing and issuing functions as CASA’s delegate and not as the Club’s agent does not detract from the fact that it was no doubt of value to the Club, in attracting custom from persons desiring flight crew training, to have in its employ persons such as Mr Harris who could not only give flight instruction on behalf of the Club, but who could also conduct flight tests and issue authorisations for CASA.
But because of concerns at the Club’s standing to seek the relief claimed, Mr Mitchell was joined as second applicant. While the Club’s Deputy Chief Flying Instructor, he underwent the necessary flight test and had his own command instrument rating renewed by Mr Harris on 1 October 1998, ie, at a time when Mr Harris held delegations from CASA permitting him to conduct such flight tests (but when he did not satisfy the condition of that delegation that he hold a current flight instructor rating) and to issue such ratings to persons passing those tests. Mr Mitchell knew that Mr Harris held delegations appropriate to enable him to renew Mr Mitchell’s own command instrument rating, ie, to conduct the relevant flight tests and to issue the authorisation, but, like everyone else, he was unaware when he underwent his test, that Mr Harris did not himself then hold a current flight instructor rating. In reliance upon the command instrument rating renewed by Mr Harris on 1 October 1998, Mr Mitchell, a very experienced pilot, thereafter performed flight instructor duties for numerous trainees which they had to undergo to obtain their own licences. The consequence of CASA’s view, if correct, is that various of the licences obtained by persons instructed by Mr Mitchell after 1 October 1998 are invalid, as are the licences and ratings issued by Mr Harris in the period 1 May 1998 to 6 April 1999.
It is apparent, on the evidence before me, that Mr Harris was himself at fault in not realising that he needed to renew his flight instructor rating if he were to comply with the requirements of his delegation to conduct flight tests; he also neglected to use the opportunity presented by the CASA periodic inspection of the Club’s operational data on 20 May 1998 to accurately check the currency of his flying authorisations. Mr Harris asserts that CASA’s computer system permits it to make this check for itself and that CASA’s officers do conduct just such a check in connection with issuing “approved testing officers”, of whom he was one, with flight test numbers that those officers must obtain before conducting any flight crew test. It appears that, though CASA had in place a computerised system (called “LARPS”) enabling CASA to monitor and pick up such defects in the licensing scheme for which it was responsible, the system was not adequate to detect Mr Harris’ oversight. The evidence for CASA comes from its internal legal counsel, who has sworn an affidavit on information and belief. He says that the LARP database does not have an automatic function that alerts CASA to the expiry of any given licence, rating, endorsement or other permission; nor does it have any data matching function establishing that a particular individual does not hold a particular permission that is a prerequisite to the exercise of another permission. He says that CASA does not send reminder notices to licence holders that their licences, ratings or endorsements are due for renewal. He also says that, contrary to Mr Harris’ assertion, “there is no legal requirement for CASA to check that an ATO [approved testing officer] holds a valid delegation”. That may well be so, but, in view of CASA’s evidence emphasising the importance, in the interests of air safety, for testing officers with delegations conditional upon them holding specific ratings only conducting tests while those ratings are current, it is perhaps surprising that CASA does not make those checks when a testing officer applies for a flight test number. CASA’s LARP records do appear to include information about such matters as the currency of ratings held by testing officers. CASA put in evidence what it described as “a printout of Garth Harris’ current record of flight crew qualifications” made by CASA on 14 October 1999. Apparently it was printed out for use by CASA in the litigation. It shows that Mr Harris, since 1964, has held numerous flight crew licences, ratings, aircraft-type endorsements and approvals. Under the heading “Instructor Ratings”, the printout contains the following:
“Grade
Type
Issue date
Expiry Date
Restrictions
Grade 1
Fixed wing
1-NOV-1968
06-APR-2001
NIL
…”
This is inaccurate. From 1 May 1998 to 6 April 1999, Mr Harris did not hold such an instructor rating. What CASA’s computerised records of the instructor ratings held by Mr Harris in that period would have shown, if checked, was not the subject of evidence. It seems likely, however, that it would have shown that his Grade 1 Instructor Rating expired on 30 April 1998, ie, that he did not then hold a current Rating.
It may be true that there is no legal requirement for CASA to check that a testing officer holds a valid delegation when he applies for a flight test number. But the regulatory scheme governing the conduct of flight tests seems clearly to envisage that CASA may make such checks. Before Mr Harris, as an “approved testing officer”, could conduct any flight test, he had to give to CASA at least twenty-four hours prior notice of the time, date, place and nature of the proposed test and obtain from CASA a flight test number for the test (reg 5.42(2)); he then had to enter the flight test number on the flight test report form used for the test, record the results of the test on the report form and send the completed flight test report form promptly to CASA (reg 5.42(3)). Mr Harris followed the procedure in reg 5.42 on the many occasions he tested air crew in the period when he did not hold a current flight instructor rating, including the occasion in October 1998 when he tested Mr Mitchell. CASA always issued him with the requisite flight test number. CASA can, by force of reg 5.44, waive the requirements of reg 5.42, either generally or on a more limited basis, at the request of the testing officer. But reg 5.44(3) shows that waiver must not be granted if that would impair “CASA’s ability to ensure that an applicant [for a flight test number, ie, the testing officer] conducts flight tests in accordance with the requirements of these regulations”. The implication from reg 5.44(3) is that at least one of the objects of reg 5.42 is to enable CASA to check whether a testing officer has the necessary authority to conduct the test for which a test number is sought.
I do not propose to grant to the Club the declaratory relief it seeks. I doubt that the Club has standing to seek that relief. Contrary to counsel’s suggestion, I do not think s 28BF the Civil Aviation Act 1988 (Cth) casts any obligation on the Club, as the holder of an Air Operator’s Certificate, to employ people who also have delegations from CASA of the kind held by Mr Harris. But even if the Club should be regarded as having the necessary standing, the declaration it seeks as between itself and CASA as to the validity of the licences and ratings of third parties lacks utility: it could not create any estoppel between those parties and the Club or between them and CASA itself or between those parties and others, such as insurers of flying operations engaged in by those third parties. However, Mr Mitchell clearly has standing to seek a declaration as to the validity of the rating he obtained from Mr Harris.
Mr Harris’ delegation with respect to CASA’s functions under reg 5.14(2) to issue a command instrument rating of the kind he gave to Mr Mitchell is not expressed in the instrument of delegation to be subject to any conditions. In contrast, his delegation with respect to CASA’s functions under reg 5.19 to conduct flight tests in relation to, among other things, a command instrument rating of the kind he issued to Mr Mitchell was expressed to be subject to him “continuing to hold a current grade 1 flight instructor (aeroplane) rating”. The duration of his instructor rating was fixed, firstly, by reg 5.17, which provides:
“(1)A flight crew rating, or grade of flight crew rating, remains in force from the day on which it is issued, or renewed, until:
(a)the end of the period set out in the Civil Aviation Orders as the period for which a rating, or grade of rating, of the kind concerned remains in force; or
(b)the end of the period set out by CASA in a person’s personal log book as the period for which the rating, or grade of rating, remains in force; or
(c)it is suspended or cancelled;
whichever occurs first.
(2)If a flight crew rating, or grade of flight crew rating, is entered by CASA in a personal log book, CASA may set out in the log book the period for which the rating, or grade of rating, remains in force.
(3)CASA may give directions in Civil Aviation Orders setting out the period for which a flight crew rating, or grade of flight crew rating, remains in force.”
And, secondly, by Civil Aviation Order Part 40, Section 40.1.7 issue 8, which provides:
“7.1 - For the purposes of subregulation 5.17 (3), a flight instructor (aeroplane) rating remains in force for the period of:
(a) …
(b)in the case of a flight instructor (aeroplane) rating grade 1 or a flight instructor (aeroplane) rating grade 2 - 2 years from the day on which the rating was issued, or renewed.”
Mr Harris’ instructor rating was issued in May 1996, hence its expiry on 30 April 1998. This May 1996 rating is described in the relevant CASA form as having been issued as a renewal of Mr Harris’ previous rating. He held a series of such grade 1 ratings continuously since 1968.
By reg 5.14, it is provided:
“(1)CASA may give directions in Civil Aviation Orders setting out:
(a)the flight tests that must be passed; and
(b)any other requirement that must be satisfied;
for the issue or renewal of each flight crew rating, or grade of flight crew rating.
(2)Subject to subregulation (3), CASA must issue a flight crew rating, or grade of flight crew rating, to a qualified person, or renew the person’s rating, or grade of rating, by entering the rating, or grade of rating, in the person’s personal log book if, and only if, the holder:
(a)has passed the necessary flight tests; and
(b)satisfies the other requirements for the issue, or renewal, of the rating, or grade of rating.
(3)CASA must not issue a flight crew rating, or grade of flight crew rating, to a person, or renew the person’s rating, or grade of rating, if the person:
(a)has knowingly or recklessly made a false or misleading statement in relation to the person’s application for a rating, or grade of rating; or
(b)does not satisfy the requirements of subregulation (2).
(5)(sic) In this regulation:
qualified person means a person who holds a flight crew licence, a special pilot licence, or a certificate of validation.”
By reg 5.18, it is provided:
“5.18 Flight crew rating: authority and flight tests
CASA may give directions in Civil Aviation Orders setting out:
(a)the authority given by a flight crew rating, or grade of flight crew rating; and
(b)the limitations on that authority; and
(c)the flight tests that must be passed, or any other requirement that must be satisfied, before that authority may be exercised.”
By reg 5.19, CASA is given authority to conduct these tests, an authority it can delegate under reg 7. Regulation 5.19 provides:
“5.19 Flight crew rating: flight tests
CASA may conduct the flight tests in relation to a flight crew rating, or grade of flight crew rating, that are required by the Civil Aviation Orders.”
The Civil Aviation Orders contain, in Section 40.2.1, the directions given by CASA under regs 5.14 and 5.18 setting out the tests to be passed for the command (multi engine aeroplane) instrument rating that Mr Harris gave Mr Mitchell, as follows:
“1.2 - For the purposes of subregulation 5.14(1):
(a)the flight tests that must be passed; and
(b)other requirements that must be satisfied;
for the renewal of each grade of instrument rating are set out in subsection 12.
…
10.4.2 -The instrument rating test must be conducted:
(a)by a CASA flying operations inspector, an approved testing officer or an approved person; and
(b)…
12.1 - A grade of instrument rating must be renewed if:
(a)its holder passes the instrument rating test applicable to the renewal of the grade of rating within the last 90 days before the grade of rating is due to expire; or
(b) …”
Sub-regulation 2 defines an “approved testing officer” as having the following meaning:
“(a)if the provision mentions a particular kind of flight test - a person to whom the Director has delegated the Authority’s power under regulation 5.19 or subregulation 5.41(4) to conduct a flight test of that kind; or
(b)in any other case - a person to whom the Director has delegated the Authority’s power under reg 5.19 or subregulation 5.41(4) to conduct a flight test.”
The wording of reg 7, which identifies “delegation” as an act of the Director constituted by his issuing in a written document authority to a person to perform particular functions of CASA, and the wording of pars (a) and (b) of the definition of “approved testing officer” in reg 2 suggests that a person’s status as an “approved testing officer” is dependent upon whether the Director has performed the act of issuing that person with a written delegation, whether conditional or not, that remains in force when the person conducts flight tests under its authority, rather than dependent upon whether the person at all relevant times acts in accordance with the conditions of the delegation. The conditions to which a delegation given under reg 7 may be subject, in my opinion, control only the exercise of the delegated functions, not the existence of the delegation itself. I therefore reject CASA’s argument that, when Mr Harris tested Mr Mitchell in breach of the condition of his delegation that he hold a current instructor’s rating, he was not an “approved testing officer” for the purposes of par 10.4.2 of Section 40.2.1 of the Civil Aviation Orders.
Detailed proficiency standards comprising relevant instrument rating tests are contained in sub-section 10 and appendix 1 of Civil Aviation Orders Section 40.2.1. So far as renewals of instrument ratings are concerned, par 4.1 of appendix 1 relaxes in a number of respects the test requirements for the initial issue of each of those ratings. But Section 40.2.1 of the Civil Aviation Orders prescribes in very considerable technical detail the tests that Mr Mitchell had to undergo to obtain the renewal of his instrument rating on 1 October 1998. The tests are generally structured to require the examinee to meet prescribed criteria, not to do something to the satisfaction of the testing officer. But they are not objective in that whether various of the criteria have been met requires the forming of a judgment by the testing officer on the student’s proficiency in performing numerous technically complex tasks: the testing officer must have sufficient technical skills of his own to know whether the examinee possesses the requisite skills to a suitable level of proficiency in order to decide whether the examinee has passed the tests.
There is no suggestion that Mr Harris did not subject Mr Mitchell to all the requisite tests or that the latter did not meet the pass standard for each of these tests before Mr Harris issued him with his renewed command instrument rating by making an appropriately certified entry in Mr Mitchell’s log book in accordance with reg 5.14(2). But CASA, by counsel’s written submission, stated that it does not accept that Mr Harris was in fact competent to conduct rating tests over the relevant period, ie, 1 May 1998 to 6 April 1999. It refers here to circumstances extraneous to the fact that his instructor rating had lapsed for this period. It points to the fact that his performance as an approved testing officer was the subject of criticism by CASA flying operations inspectors on four occasions, in October 1993, January 1994 and January and June 1998. Mr Harris also failed tests for renewal of his own command instrument rating in April 1996 and April 1998, although he appears to have passed when re-tested soon afterwards on both occasions. He again failed to obtain renewal of this rating on 16 April 1999 and the evidence does not indicate whether he has been re-tested. After he failed the rating renewal test in April 1996, the flying operations inspector actually recommended that the Director revoke Mr Harris’ testing delegation.
It is not clear what point CASA seeks to make from this evidence. It is, in any event, difficult for the Court to evaluate the significance of these deficiencies in Mr Harris’ performance on the evidence now before it. But what is clear is that he has held a grade 1 flight instructor rating continuously since 1968 (apart from the period 1 May 1998 to 6 April 1999), ratings that were periodically renewed after Mr Harris passed the prescribed flight tests; this rating was again granted to him on 7 April 1999. It is also clear that CASA, with knowledge of these recent deficiencies, has long considered Mr Harris to be sufficiently competent, having regard to the requirements of air safety, to be its delegate both for the purposes of conducting licence and rating tests and issuing licences and ratings: it appears from Mr Harris’ “employment history” produced by CASA that he has held a range of delegations as an approved testing officer for many years and that at least since 23 June 1996 he has continuously held delegations from CASA to conduct a range of tests prescribed for the issue and renewal of licences and ratings, as well as delegations to issue such licences and ratings. It is difficult to accept that CASA, despite its knowledge of the occasional deficiencies in his performance, would have allowed Mr Harris’ most recent delegations to stand over the past three or four years if it had any real doubt about whether he was competent to perform those important delegated functions without putting air safety in jeopardy. In fact, for reasons which will appear, CASA was duty bound to be satisfied that he had the competence to conduct the flight tests the subject of the delegation when, each June, it authorised Mr Harris to act for it.
Central to the resolution of the dispute as to the validity of Mr Mitchell’s instrument rating issued by Mr Harris is the question of the proper construction of the relevant legislative provisions. It is common ground that this question is to be resolved by the application of the principle stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388 - 389; [1998] HCA 28 at [91], viz:
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.”
The principle is easier to state than to apply, the High Court adding:
“Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.”
The High Court, at 390; [93] nevertheless identified the principle set out at 388 - 389; [91] as a better test for determining the issue of validity of acts done in breach of the condition regulating the exercise of a statutory power than tests involving the “elusive distinction between directory and mandatory requirements”.
In my opinion, that Mr Harris issued the rating to Mr Mitchell as CASA’s delegate under an unconditional delegation to do that, but upon the basis of flight tests he conducted under a conditional delegation, when Mr Harris did not satisfy one of those conditions, does not invalidate Mr Mitchell’s rating. My reasons for so concluding are as follows:
(1)The legislative intent discernible from both the Act and the provisions of the Regulations and Civil Aviation Orders providing for the grant of particular flight crew licences and ratings (including those prescribing the detailed tests to be passed) is that persons competent to carry out particular flight crew functions are to be authorised to do so.
The general regulatory principle with which CASA must comply is contained in s 18 the Civil Aviation Act 1988 (Cth). It provides that CASA “must” give a person a permission applied for “if CASA is satisfied that the person has complied with, or is capable of complying with, the safety rules (including rules about the competence of persons to do anything that would be covered by the permission)”. The terms “permission” and “safety rules” are defined in s 18(3) to mean a permission under Part III of the Act (save for a few presently irrelevant classes of permission) and the term “safety rules” is defined to mean “the provisions of this Act, and of the regulations, that relate to safety”. Section 20AB proscribes, under criminal sanction, the performance by a person of any duty essential to the operation of an Australian aircraft during flight time unless the person holds “a civil aviation authorisation” that is in force and authorises the person to perform that duty. In s 3 of the Act, the expression “civil aviation authorisation” is defined to mean “an authorisation under the Civil Aviation Regulations to undertake a particular activity (whether the authorisation is called an authority, licence, certificate, rating or endorsement or is known by some other name)”.
In the context of Pt III of the Act, in my opinion, a “permission” within s 18(1) includes flight crew licences of the kind provided for by reg 5.08 and flight crew ratings provided for by reg 5.13. I further think that the expression “safety rules” in s 18(1) includes the tests prescribed by the Regulations and the Civil Aviation Orders that must be passed before a person is entitled to such a licence or rating.
That the legislative purpose is directed to ensuring that a person who is competent to perform a particular flight crew activity is given an authorisation for that activity is, in my opinion, made clear by the general principle stated in s 18(1) which requires CASA to grant a permission not only if the applicant has complied with the safety rules, but also if that person is capable of complying with them. This principle is reflected in reg 5.14(2) dealing with the issue of flight crew ratings in so far as it obliges CASA to issue a flight crew rating to a person qualified to apply for the rating under reg 5.13 (ie, a person with sufficient competence to hold one of the flight crew licences in reg 5.08) if the person has passed the necessary flight tests and satisfies other relevant requirements for the issue of the rating: CASA has no discretion to refuse a rating to such a person.
(2)That the validity of a rating issued either by CASA itself or by its delegate to a person who, on testing, has demonstrated his competence to hold or have renewed the rating in question is not affected by the fact that the person administering the test may have some defect in his own testing authority is further supported by the following considerations:
(a)One of CASA’s functions under s 9(1)(e) of the Act in conducting the safety regulation of civil air operations in Australia is to issue, among other things, certificates and licences (which, by s 3, includes a rating or other endorsement on a licence). Section 9A(1) obliges CASA, in exercising its powers and performing its functions, to regard the safety of air navigation as the most important consideration. Accordingly, in exercising his power under reg 7 to delegate any of CASA’s powers and functions under the Regulations with respect to the testing for and issue of licences and ratings, the Director of Aviation Safety would be bound by these provisions to ensure that such delegations were given only to persons competent to exercise those powers and functions of CASA. CASA monitors their continued competence by deciding each year whether to renew each delegation on the basis of “scheduled surveillance”, ie, a check by a flying operations inspection, every eighteen months, (though if it receives a complaint about an approved testing officer or considers there is good reason to do so, it will subject the officer to “unscheduled surveillance”). Conformably with the duty imposed on the Director by s 9A(1), the delegation given to Mr Harris to perform CASA’s functions in testing persons in relation to the issue to them of command instrument ratings is not expressed to be subject to the delegate obtaining certain qualifications of his own in the future, but rather subject to him holding authorisations.
Compliance with a condition of a delegation to test that requires the testing officer to keep current his instructor rating is not necessarily a link between the capacity of a testing officer to assess an examinee’s proficiency in meeting the test standards and the proficiency of the examinee in that regard. A person who possesses sufficient skills to satisfy CASA that he is competent to perform CASA’s own flight testing functions and thus competent to be delegated to perform those functions does not ordinarily cease to possess those skills the instant his flight instructor rating expires, even though the exercise of his delegated authority to test others is conditional upon his keeping that rating current.
The condition in question to which Mr Harris’ delegation to conduct certain flight tests was made subject was imposed in the interests of air safety. For practical reasons, CASA performs its testing functions by issuing delegations similar to that it gave Mr Harris to many persons. It is duty bound to select, as its delegates, only persons competent to perform the delegated functions. The practical assumption is that, prima facie, they will continue to be competent to perform their functions throughout the period of their delegations. CASA further assures itself of its delegates’ continued competence by reviewing whether to renew delegations annually and by having periodic surveillance checks conducted by its own inspectors. Conditions of the kind now in question to which delegations are made subject, I think operate as yet another assurance to CASA of the continued competence of its delegates to perform the functions confided to them: they are not to exercise their delegated authority if they do not comply with the conditions of the delegation. But the considerations I have referred to above suggest that while such a condition of a delegation serves this purpose, it is not directed to controlling the validity of ratings issued by delegates, if they do act for CASA in breach of a condition of their delegation.
(b)There is no express declaration in the Act or the Regulations that makes invalid a rating issued by a person in breach of a condition of his delegation.
(c)Not only is there nothing in the regulatory scheme stating that a licence or rating issued by a person in breach of his authorisation to do that is invalid, but there are indications to the contrary. The legislative scheme, as a means of ensuring air safety, provides for a range of licences, ratings and endorsements as pre-conditions to persons being lawfully able to perform the many different kinds of activity involved in the operation of civil aircraft. Under the scheme, these various authorisations take the form of physical documents issued by CASA or its delegates: the documents do not operate merely as evidence that a particular authorisation has earlier been granted. See, eg, as to ratings, reg 5.14(2); as to endorsements, reg 5.23(2); as to certificates of validation, reg 5.30. As to medical certificates which, by reg 5.04 all holders of flight crew licences must hold, see Part 6 of the Regulations. By reg 5.17(1), a rating remains in force “from the day on which it is issued, or renewed” until the end of the period prescribed for its duration or until it is earlier suspended or cancelled by CASA. A licence remains in force indefinitely unless it is suspended or cancelled by CASA (reg 5.12). Possession of the appropriate document issued by CASA or its delegate is the holder’s authorisation to perform the relevant flying operations for the purposes of, eg, s 20AB.
These features of the scheme suggest that there is no room to go behind a written document of authorisation issued by CASA or its delegate and query their entitlement to issue the document when a question arises as to the holder’s authorisation to engage in the flying operations to which the document relates.
(d)That a document issued by CASA or its delegate authorising a person to engage in particular flying operations is conclusive of the person’s entitlement to do that does not mean that air safety is in any jeopardy. CASA has wide powers to suspend and cancel licences (which includes ratings and endorsements: reg 263(1)(c) and (ca)), ie, to deprive the document of its effect as an authorisation, either temporarily or permanently. By reg 269(1)(b), this power can be exercised by CASA if satisfied that the holder of a licence or rating fails to satisfy any requirement prescribed by the Regulations in relation to the obtaining of such a licence or rating, as well as if the holder fails to continue to satisfy any requirement in relation to the holding of a licence or rating. This suggests that while a licence or rating initially obtained without compliance with a prescribed requirement for its issue can be cancelled, it is nevertheless valid unless and until CASA acts to cancel it. (Though CASA can so act only after giving the holder of the licence or rating in question an opportunity to show cause why action should not be taken against him under reg 269(3), it has, under reg 268, power to impose an interim suspension without prior notice, if that course is justified by air safety concerns, another reflection of the policy of s 18 and s 9A. Similarly, where a senior flying operations inspector considers it necessary in the interests of air safety to require the holder of a licence or rating to undertake an examination to demonstrate a continued competence to hold the licence or rating under reg 5.38, CASA itself has power under reg 265 to peremptorily suspend the licence or rating pending completion of the examination.)
Given the powers CASA has over licences and ratings, air safety is not put in jeopardy by reading the regulatory scheme as providing for licences and ratings that are legally effective once issued, though they may have been obtained in circumstances in which the prescribed procedures for their issue have not been followed.
(e)Criminal liability is attracted under s 20AB and reg 282 where a person engages in a flying activity for which a licence or rating on a licence is required under the Regulations if he does not “hold” the appropriate licence or licence containing the appropriate rating. On the face of these provisions, possession of an appropriate licence or rating is a complete answer to a criminal charge and there is no room for fixing such a person with criminal liability because of some defect in the process that resulted in the issue of the licence. Of course, Mr Harris, in issuing the rating to Mr Mitchell when he did not hold the instructor rating upon which his delegated power to do that was conditioned, might, for that reason, commit an offence within reg 282(1)(e). But, for the reasons given, that casts no doubt on the efficacy of Mr Mitchell’s own rating as an answer to any allegation against him that he breached the regulation because the test, on the basis of which his rating was issued, was improperly carried out by Mr Harris.
(f)CASA points out that, though Mr Harris’ delegation under reg 5.14(2) to issue flight crew ratings was unconditional, in contrast to his delegation under reg 5.19 to conduct flight tests for such ratings, reg 5.14(2) itself obliges CASA to issue a flight crew rating “if and only if” the holder “has passed the necessary flight tests” and “satisfies the other requirements for the issue, or renewal, of the rating, or grade of rating”, an obligation emphasised by the corresponding prohibition in reg 5.14(3)(b). It is said that these words can only signify that CASA and Mr Harris as its delegate have no power to issue ratings in the absence of satisfaction of the relevant requirements. So much can be accepted. But that does not, of itself, provide the answer to the question whether non-compliance by Mr Harris with one of the conditions upon which he was empowered to perform CASA’s testing functions is, of itself, sufficient to require the conclusion that he was not entitled to perform his issuing function. For the reasons given, Mr Harris acted as an “approved testing officer” when he conducted the tests for Mr Mitchell’s command instrument rating renewal. There is therefore no ground on which it can be said that CASA was entitled under reg 5.14(2) to refuse to issue the rating that it issued to him by its delegate on 1 October 1998, given that, on the evidence before me, Mr Mitchell did then pass the necessary flight tests and did satisfy all the other requirements for the issue of that rating.
(3)The consequences are draconic for many people if a breach by Mr Harris of the condition of his delegations under reg 5.19, to conduct flight tests in relation to command instrument ratings, (and under reg 5.41(4)(a), (g) and (h), to conduct flight tests in relation to various types of pilot’s licences), means that the persons issued with licences and ratings on the basis of tests conducted by him are, for that reason alone, to be taken not to have passed those tests.
If CASA’s argument is correct, the many licences and ratings issued by Mr Harris in the period 1 May 1998 to 6 April 1999, on the basis of successful completion of flight tests conducted by him, will all be invalid. Ratings and endorsements subsequently obtained from CASA, Mr Harris or any of CASA’s other delegates by persons issued with licences or lower-grade ratings by Mr Harris in this period will also be invalid: those more recently obtained ratings and endorsements are dependent on the authorisations issued by Mr Harris. If Mr Mitchell’s command instrument rating issued by Mr Harris on 1 October 1998 is invalid for this reason, certain of the licences and ratings issued to others in reliance on flight instruction given by Mr Mitchell in the period 1 October 1998 to 30 September 1999 (when the 1 October 1998 renewal of his command instrument rating would otherwise have been in effect by force of par 5.1 of Civil Aviation Orders, Section 40.2.1, Issue 2) may also be invalid.
A large number of persons innocently ignorant of the defects in Mr Harris and Mr Mitchell’s authorities will have been flying since 1 May 1998 without effective authorisations to do so, although it is not suggested that any failed to meet the prescribed standards of competence for the licences and ratings now said to be invalid. A consequence of the invalidity of the licences, ratings etc of such persons is that, if claims are made against any of them while flying in reliance on such authorisations, the usual terms of insurance policies issued in respect of flying operations are such as to entitle an insurer to refuse indemnification because of the absence of a valid flying authorisation. Further, all may be exposed to criminal liability for breaching reg 282(1) and s 20AB the Civil Aviation Act 1988 (Cth). CASA submits that an honest and reasonable belief that a person had passed a valid test and had, in consequence, a valid licence or rating would provide a good defence to such a prosecution. That reg 282 and s 20AB of the Act should be construed as incorporating the element of mens rea is not, however, self-evident, given CASA’s own insistence in argument that air safety considerations dictate the conclusion it says flows from the lapse of Mr Harris’ instructor rating in the period 1 May 1998 to 6 April 1999. If air safety considerations require ratings issued by Mr Harris in this period to be treated as invalid, the innocent ignorance of the holders cannot be sufficient to obliterate the risk to air safety created by Mr Harris’ unauthorised issue of those ratings. The prohibitions in reg 282 and s 20AB of the Act, which are intended to be sanctions against putting air safety at risk, may be absolute. Cf He Kaw Teh v The Queen (1985) 157 CLR 523 at 528 - 530; 552 - 553 and 566.
Though there are sufficient reasons in what I have so far written for making a declaration as to the validity of Mr Mitchell’s command instrument rating renewed on 1 October 1998 on the basis of Mr Mitchell having passed the prescribed tests conducted by Mr Harris under his delegation from CASA, it is appropriate to note that the Club (and Mr Mitchell) sought to rely also on the proposition that the ratings and licences issued on the basis of tests conducted by Mr Harris during the period when he did not hold a current instructor rating were nevertheless valid by force of the “de facto officer’s rule”.
I would be very much inclined to accept the submissions on behalf of CASA that the rule has no application to the present situation on the ground that, before it can apply, there must exist an identifiable public office that has a separate existence from the person who has exercised the powers.
In her article, “De Facto Officers” (1994) 2 Australian Journal of Administrative Law 5, Professor Enid Campbell said, at 7:
“The concept of an office is not precise but it seems to entail, at the very least, an established position, occupancy of which carries with it ascertainable powers and duties. Mere agents and delegates are not, therefore, holders of offices, though their acts may be validated by conferral of authority upon them, actually or ostensibly, by the lawful or de facto occupants of offices in the strict sense.”
Moreover, it appears the doctrine is applicable only to validate acts done in purported performance of the duties of an office which would be within power if the holder of the office had been validly appointed to it. See Bond v R (2000) 169 ALR 607; [2000] HCA 13 at [33]. It does not operate to validate acts invalidly done by the lawful holder of a public office. There is no question here as to the validity of Mr Harris’ delegation. Even if a delegate can come within the rule, there is therefore no room for the rule to have any operation to make his actions legally effective as between persons tested by him and CASA. (The Canadian Supreme Court decision in Re Language Rights under Manitoba Act 1870 (1985) 19 DLR (4th) 1 at 28 appears to be consistent with this limitation on the scope of the rule: “The application of the de facto doctrine is, however, limited to validating acts which are taken under invalid authority”.)
There will be a declaration that Mr Mitchell’s command instrument rating renewed on 1 October 1998 was a valid permission and civil aviation authorisation for the purposes of the Civil Aviation Act 1988 (Cth) and the Civil Aviation Regulations notwithstanding that it was issued in consequence of flight crew tests undertaken by Mr Mitchell and conducted by Mr Harris at a time when Mr Harris could not satisfy a condition of his delegation from CASA to conduct such tests by reason of not then holding a current flight instructor rating.
The Club’s claim for relief will be dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond. Associate:
Dated: 22 June 2000
Counsel for the Applicant: Mr HB Fraser QC and Mr JA Logan Solicitor for the Applicant: Barker Gosling Counsel for the Respondent: Mr W Sofronoff QC and Mr B Porter Solicitor for the Respondent: Mallesons Stephen Jaques Date of Hearing: 28 October 1999 Date of Judgment: 22 June 2000
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