Schott and Civil Aviation Safety Authority

[2021] AATA 1855

Schott and Civil Aviation Safety Authority [2021] AATA 1855 (23 June 2021)

Division:GENERAL DIVISION

File Number(s):      2020/0346

Re:Peter Schott

APPLICANT

AndCivil Aviation Safety Authority

RESPONDENT

DECISION

Tribunal:Deputy President I R Molloy

Date:23 June 2021

Place:Brisbane

The decision under review is affirmed.

..................................[SGD]......................................

Deputy President I R Molloy

CATCHWORDS

CIVIL AVIATION – fit and proper person – flight examiner rating – aviation safety duties and obligations – safe operation and navigation of aircraft – duties and obligations of flight examiner rating holder – breach of Civil Aviation Safety Regulations 1998 – instrument rating flight tests – examiner proficiency tests – passengers during emergency procedures – auditors – crew members

LEGISLATION

Civil Aviation Act 1988 (Cth)

Civil Aviation Order (Flight Crew Licensing) Repeal and Amendment Instrument 2014
Civil Aviation Regulations 1988
Civil Aviation Safety Amendment (Part 91) Regulations 2019
Civil Aviation Safety Regulations 1998
Part 61 Manual of Standards 2014
Part 61 Manual of Standards Amendment Instrument 2018 (No. 2)

CASES

Anderson v Civil Aviation Safety Authority [2013] FCA 1367

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49
Cole and Civil Aviation Safety Authority [2004] AATA 1092
De Simone v Federal Commissioner of Taxation [2009] FCAFC 181
Ekinci and Civil Aviation Safety Authority (2014) 227 FCR 459
Ekinci and Civil Aviation Safety Authority [2014] AATA 424
Hanley and Civil Aviation Safety Authority [2012] AATA 820
Hughes and Vale Pty Ltd v State of NSW  (1955) 93 CLR 127
Jones and Civil Aviation Safety Authority [2014] AATA 820
Kowalski v Military Rehabilitation and Compensation Commission [2007] AATA 1988
Pantovic and Civil Aviation Safety Authority [2015] AATA 992
Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554
Repacholi and Civil Aviation Safety Authority [2003] AATA 573
Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Sullivan v Department of Transport (1978) 20 ALR 323

REASONS FOR DECISION

Deputy President I R Molloy

23 June 2021

Introduction

1.The Civil Aviation Safety Authority (‘CASA’ or the ‘Respondent’) is established under the Civil Aviation Act 1988 (Cth) (‘CAA’ or the ‘Act’). Its primary functions relate to the safety regulation of civil air operations, carried out in accordance with the Act and Regulations,[1] including the Civil Aviation Regulations 1988 (‘CAR’) and the Civil Aviation Safety Regulations 1998 (‘CASR’).  

[1] CAA ss 8 and 9.

2.The licensing of air pilots is regulated by CASR Part 61. From 10 December 2015 to 15 January 2020 the Applicant, Peter Schott, held a Flight Examiner Rating (‘FER’) issued by CASA pursuant to which he could conduct flight testing activities including for the purposes of pilot ratings and endorsements. An FER is the highest rating available to a pilot.

3.As CASA submits,[2] the holder of an FER has the duty and responsibility, independently, to exercise the privileges of the rating with limited oversight by CASA. CASA does not have the capacity to conduct all flight tests and proficiency checks itself. It is not able to review each flight test or proficiency check performed by a flight examiner.

[2] Respondent’s Submissions dated 31 March 2021 (‘Respondent’s Submissions’), [53].

4.CASA submits[3] it is essential that a flight examiner has and maintains the necessary knowledge of the relevant regulatory standards, testing procedures and competency standards; sound judgement, comprehension and analytical skills; administrative proficiency; and the ability to objectively reflect and self-assess. These matters are reflected in CASR Division 61.U and the relevant competencies for an examiner described by Part 61 of the Manual of Standards (‘MOS’).[4]

[3] Ibid, [55]

[4] Part 61 MOS is a legislative instrument made by CASA under CASR r 61.035. It is published on the Federal Register of Legislation (comlaw.gov.au). Schedule 1 of Part 61 MOS explains how it is structured.

5.The competency standards against which a flight examiner is to be assessed (for the purposes of applying for an FER or during an examiner proficiency check), and which he or she is expected to maintain, are set out in Part 61 MOS Schedule 2. A flight examiner must conduct flight tests in accordance with the standards set out in the Part 61 MOS Schedule 5 and assess the applicant against the competency standards mentioned in the Part 61 MOS Schedule 2: CASR r 61.1295(3).

6.Mr Schott accepted that the functions of a flight examiner are critical to aviation safety[5] and that aviation safety was dependent, in particular, on a flight examiner only issuing a rating or endorsement to those persons who demonstrate the necessary competencies.[6] A flight examiner who conducts a flight test must complete a report, in the approved form, setting out the result of the flight test and provide a copy to the applicant pilot, the training operator and CASA: CASR r 61.1295(4).

[5] Transcript page 38, lines 45-46

[6] Transcript page 47, lines 35-36

Reviewable decision

7.Between about October 2018 and September 2019, CASA conducted a review of flight tests conducted by Mr Schott between 8 February 2017 and 20 August 2018. The review was conducted by Ian Ogilvie, the manager of the Flight-Testing Office, General, Recreation Aviation and Sport Branch, within CASA.

8.Consequent upon the review, Mr Schott was the subject of a show cause process pursuant to CAR r 269(3), including a conference which took place on 15 November 2019 and the provision by Mr Schott of supplementary material on 18 November 2019. On 14 January 2020, Mr Ogilvie recommended to a CASA delegate that Mr Schott’s FER be cancelled.

9.On 15 January 2020, the CASA delegate, Anthony Stanton, cancelled Mr Schott’s FER (and associated endorsements) pursuant to CAR r 269(1) (the ‘reviewable decision’). He did so on the grounds that:

(a)Mr Schott had contravened CAR r 249 and CASR r 61.885 on a number of occasions;

(b)Mr Schott had failed in his duty as a holder of the FER in a manner affecting the safe operation and navigation of aircraft;

(c)Mr Schott was not a fit and proper person to be the holder of an FER; and

(d)the appropriate enforcement outcome, consistent with the interests of safety, was cancellation.

Examiner Proficiency Checks

10.On 20 January 2020, Mr Schott applied to the Tribunal for a review of the reviewable decision and for a stay. On 31 January 2020, the Tribunal ordered (by consent) that the reviewable decision be stayed until the final decision of the Tribunal on the application for review, subject to a number of conditions. The first condition required that Mr Schott successfully complete an Examiner Proficiency Check (‘EPC’) on 11 and 12 February 2020, being a check, which flight examiners must undertake every 24 months.[7]

[7] CASR r 61.1285.

11.The EPC was attempted on 11 and 12 February 2020 (‘first EPC’) and then on 18 February 2020 (‘second EPC’). Each of these EPCs was judged by the CASA Examiner as incomplete as the underlying Instrument Rating Proficiency Check (‘IPC’) being conducted by Mr Schott was (correctly) terminated by him prior to the applicant pilot becoming airborne.

12.An EPC was conducted afresh and completed on 11 and 12 March 2020 (‘third EPC’). Mr Schott was judged as having passed the requisite theory component (as he had on the First EPC, carried over to the second EPC) but was assessed as an overall fail by Paul Baker, a CASA Flight Training Examiner.[8]

[8] Exhibit 1 (Tribunal Document 87, pages 490-491).

13.The assessments of each of the first, second and third EPCs were disputed by Mr Schott and were put in issue in these proceedings. It is convenient to deal with those matters now. I have no hesitation in finding that Mr Schott did not successfully complete any of these EPCs. The first and second EPCs were simply not completed. I accept CASA’s submission that neither could be assessed as a pass absent the in-flight component. On the second EPC this was ultimately to Mr Schott’s advantage because he would have been assessed as a fail irrespective of how he performed on the in-flight component.[9]

[9] Exhibit 14 (Paul Baker Statement, [75]-[93]).

14.The third EPC was assessed a fail for the reasons expressed by Paul Baker in his statement.[10] Mr Baker corrected one error in his initial assessment which, as he explained, made no difference to his overall assessment.[11] I reject Mr Schott’s various arguments, and his attempts to impugn Paul Baker’s evidence, as to this assessment. On the contrary, I find Paul Baker’s evidence was objective, considered and professional, and I accept it. I also note Mr Stanton reviewed Mr Paul Baker’s contemporaneous records and descriptions of Mr Schott’s conduct on the third EPC and agreed with the decision made.[12]

[10] Ibid, [8], [95] – [133].

[11] Transcript page 466, lines 5-28; page 500, lines 23-26; page 501, lines 10-11; page 507, lines 28-32; page 466, lines 30-45; page 467, lines 1-2.

[12] Exhibit 22 (Anthony Stanton Statement (‘Stanton Statement’), [172]).

Issues

15.The issues as set out in CASA’s Statement of Facts, Issues and Contentions, dated 14 August 2020, are:

(a)whether Mr Schott as the holder of an FER failed in his duty with respect to any matter or matters affecting the safe navigation or operation of an aircraft within the meaning of CAR r 269(1)(c);

(b)whether Mr Schott is a fit and proper person to have the responsibilities and exercise and perform the functions and duties of the holder of an FER within the meaning of CAR r 269(1)(d); and

(c)whether the correct and preferable decision is to affirm, vary or set aside the reviewable decision, having regard to the safety of air navigation as the most important consideration pursuant to the CAA s 9A.

16.As CASA submits, the above grounds are separate and distinct, but they are not mutually exclusive and overlap to a significant extent.[13] It is accepted by both parties, that the question whether Mr Schott is a fit and proper person to hold an FER is to be determined as at that date upon which this decision is made.[14]

[13] Anderson v Civil Aviation Safety Authority [2013] FCA 1361, [7].

[14] Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

17.Mr Schott was self-represented and, of course, was also a witness in the proceedings. CASA submitted that some of the views expressed by Mr Schott were so erroneous as to support CASA’s case that he did not have the knowledge, understanding or judgment appropriate to the holder of an FER. I am conscious that a distinction should be drawn between what were solely Mr Schott’s submissions and what could properly be seen as, for example, his misunderstandings of his privileges and duties as the holder of an FER going to his fitness and propriety.

18.Following nine sitting days, and after receipt of CASA’s written submissions, Mr Schott was permitted time (in fact, longer than he had sought) to lodge and serve submissions. CASA, in reply, points out that he has thereby sought to adduce new evidence, despite being informed that it was not an opportunity to do so. I accept CASA’s submission[15] (provided to Mr Schott) that the only means through which the new material can be received and considered is upon application or request by Mr Schott for leave to re-open his case, make further submissions and tender further evidence.[16] That is because, such material has not been investigated and tested by CASA who, as a matter of procedural fairness, is entitled to do so and make submissions upon it.[17]

[15] Respondent’s Submissions in Reply dated 27 April 2021, [20].

[16] Kowalski v Military Rehabilitation and Compensation Commission [2007] AATA 1988, [21]-[22].

[17] Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J, with whom Fisher J agreed), applied in De Simone v Federal Commissioner of Taxation [2009] FCAFC 181, [15] (Sundberg, Stone and Edmonds JJ).

19.As to Mr Schott as a witness, there is strength in CASA’s submissions that he was selective in his evidence, was generally unwilling to make reasonable concessions, and for the most part resiled from the few concessions previously made.[18] His evidence was inconsistent and at times, implausible. Despite being loquacious, he was frequently unresponsive, in a relevant sense, to the questions asked of him.[19] Mr Schott was not a reliable witness.

[18] Transcript pages 644 - 647.

[19] Respondent’s submissions, [48].

Alleged failures of duty

20.CASA contends that Mr Schott has failed in his duty as a flight examiner with respect to matters affecting the safe navigation and operation of an aircraft in five respects:

(a)he conducted initial issue of flight tests in a flight simulation test device (‘FSTD’), contrary to the governing regulatory framework, on 32 separate occasions;

(b)he granted privileges to persons not entitled to receive them;

(c)he laboured (and appears to continue to labour) under misunderstanding of the regulatory requirements governing the discharge of his privileges for a period of many years and has instead operated by reference to an inapplicable and irrelevant set of standards and procedures;

(d)he has demonstrated a systemic failure to comply with the formal requirements of the flight licensing regime and exercise the necessary administrative competencies to ensure the regime maintains its integrity and reliability; and

(e)he authorised and encouraged the presence of inexperienced and underqualified pilots on aircraft during the undertaking of emergency procedures.

Flight tests in FSTDs

21.A review of Mr Schott’s flight tests conducted between 8 February 2017 and 20 August 2018 revealed that Mr Schott, as flight examiner, had:

(a)assessed a number of mandatory requirements for an initial issue instrument rating test in an FSTD for 32 separate applicant pilots; and

(b)granted instrument ratings to those applicant pilots by way of a direct entry into each applicant’s licence.

22.CASA contends that this was in direct contravention of CASR r 61.885(4) and resulted in the grant of instrument ratings to 32 persons without the requisite demonstration of competency, each of whom was immediately permitted to exercise the privileges of the instrument rating for a not inconsiderable period of time.

23.The requirements for the grant of an instrument rating are prescribed by CASR r 61.885. Relevantly:

(a)the applicant pilot must pass the flight test mentioned in the Part 61 MOS for the instrument rating and aircraft category associated with the applicant’s pilot licence[20]; and

[20] CASR r 61.885(2)(c).

(b)that flight test must be conducted in an aircraft unless the applicant pilot has previously held:

i.an instrument rating;

ii.an overseas rating CASA is satisfied is equivalent to an instrument rating; or

iii.a qualification issued by the Australian Defence Force that CASA is satisfied is equivalent to an instrument rating.[21]

[21] CASR r 61.885(4).

24.The requirement that the flight has to take place in an actual aircraft is to ensure that the applicant, when assessed for the initial issue of the rating, is assessed in the real-world complex aviation environment which cannot be meaningfully replicated in an FSTD.[22]

[22] Exhibit 22 (Stanton Statement), [76].

25.None of the 32 applicants had previously held an instrument rating or equivalent within the meaning of CASR r 61.885(4). Administrative action was taken against each of them following which 19 persons were the subject of further administrative action by CASA, requiring, for a number of the applicants, that they be tested afresh in an aircraft with an alternative flight examiner.[23]

[23] Ibid, [128].

26.Furthermore, CASA contends that even for applicant pilots who have previously held an instrument rating or approved equivalent, the flight test may only take place in an FSTD if the FSTD is approved for the undertaking of an instrument rating flight test.[24] The evidence is that the FSTDs used by Mr Schott (which comprised Category B synthetic trainers) would be unlikely to have met the rigorous and comprehensive standards so as to be approved for the undertaking of an instrument rating fight test.[25]

[24] Civil Aviation Order 45.0.

[25] Exhibit 23 (Anthony Stanton Supplementary Statement), [26] – [27], [33].

27.I have considered Mr Schott’s contentions in answer to these matters. I do not accept any of them. He claims that Part 61 MOS Schedule 5 was “not visible” and as such, he could not comply with it. Mr Schott’s evidence was:

I was unable to access MOS Part 61 Schedule 5 as it was unavailable to be accessed on the Commonwealth Government website(s) (an issue which was only fixed after the issues the subject of the alleged regulatory contraventions arose).[26]

and:

I was not aware of Schedule 5 or its importance. It is very hard to argue otherwise given that it was not visible.[27]

[26] Exhibit 1 (Tribunal Document 76, page 322 (Mr Schott’s ‘Response to Notice of Proposed Action’)).

[27] Ibid, page 330.

28.However, the regulation Mr Schott is said to have contravened (CASR r 61.885(4)), is not contained in Part 61 MOS Schedule 5. Any inability to locate and review Part 61 MOS Schedule 5 is irrelevant to non-compliance with a regulation within the CASR.

29.In any event, if it is relevant, I do not accept that Part 61 MOS Schedule 5 was “not visible”. There is no evidence (other than from Mr Schott) that Part 61 MOS Schedule 5 was unavailable at any time (other than, as one would expect, during maintenance to the comlaw.gov.au website), let alone seemingly for a period of four years (or any other length of time). In any event, as CASA submits, if Mr Schott was unable to locate what he thought was a relevant schedule of Part 61 MOS, why would he not have approached CASA for guidance in this regard?

30.Whilst Schedule 5 of Part 61 MOS was in fact available, it is concerning as CASA submits, that Mr Schott – for an extended period of time – was apparently unable to locate it and did not, at any time until 2018 when he was being investigated, contact CASA for guidance or assistance.[28] As CASA submits, Mr Schott’s statement that he was “not aware of Schedule 5 or its importance” indicates, amongst other things, that:

(a)he did not understand the flight-testing process and the interplay between the relevant Part 61 MOS Schedules, or if he did, he determined not to comply with it;

(b)for a considerable time, some years, Mr Schott did not conduct flight tests by reference to the mandatory standards governing his role as a flight examiner.

[28] Transcript page 224, lines 21-29; page 334, lines 29-44.

31.Mr Schott says he applied Part 61 MOS Schedule 2 which permitted him to use an FSTD as he did. I accept CASA’s submission that Schedule 2 does no such thing. The interplay between CASR Part 61 and the Part 61 MOS is straight-forward. Mr Schott’s contentions both to CASA, and to this Tribunal, indicate that he remains unaware of the CASR Part 61 regime, the flight-testing process, and the distinction between the various Part 61 MOS Schedules.

32.I also reject Mr Schott’s evidence that the relevant CASA form for an instrument rating flight test was materially incorrect and induced him to commit the errors. As explained in CASA’s submissions, the form is not incorrect as alleged. It is implausible that it could have induced the errors as Mr Schott alleges. Having seen and heard Mr Schott give evidence, I do not accept this caused or contributed to his error.

33.I reject as irrelevant to this issue his criticism that CASA did not review his flight test records and identify his erroneous use of an FSTD within 14 days of the impugnable flight tests conducted in contravention of CASR r 61.885(4). I think this goes to Mr Schott’s understanding of his duties and responsibilities as a flight examiner, not to any failing on the part of CASA.

Further flight test records  

34.Following the institution of these proceedings, Mr Schott provided 128 flight tests or proficiency checks conducted during the period September 2018 to December 2019. He did so as “proof that many flight tests, for proficiency checks and operator proficiency checks where [sic] preformed [sic] without breach. This should give the AAT and CASA the utmost confidence that future tests will be conducted lawfully.”[29]

[29] Exhibit 2 (Applicant’s Statement of Facts, Issues and Contentions dated 8 April 2020), [9].

35.Those flight tests were reviewed by Mr Ogilvie who identified 125 anomalies or errors.[30] On at least five occasions, as Mr Ogilvie found, Mr Schott granted privileges to persons not entitled to receive them, or where it cannot be comfortably concluded that the persons were entitled to receive them.[31] Mr Schott’s response was to characterise Mr Ogilvie’s assessment as an “issue of paperwork compliance” which, due to CASA’s transition to the FTM electronic system, will not be an issue in the future.[32]

[30] Exhibit 19 (Ogilvie Statement), [109]-[114].

[31] Ibid, [151]-[159].

[32] Exhibit 4 (Further supplementary statement of the applicant dated 4 September 2020), [54]-[55].

36.I accept CASA’s submission that the discharge by a flight examiner of all administrative duties is a central plank in the licensing scheme, and is a required core flight examiner competency.[33] Without both their performance of flight test duties strictly in accordance with the regulatory regime, and accurate recording and certification of those results, there can be no certainty to CASA that the qualification granted to a pilot was warranted.

[33] Part 61 Manual of Standards Amendment Instrument 2018 (No. 1)(Cth), Schedule 2, FER.7.

37.Mr Schott’s contentions that many errors committed by him comprised “paperwork issues”, and that administrative matters do not relate to aviation safety,[34] are contrary to these principles. Mr Schott’s contentions are contrary to the obligations imposed upon flight examiners under CASR Division 61.U.[35] I do not accept Mr Schott’s argument that the FTM system, once it is adopted as the sole mechanism for reporting flight testing activities, means that no future issues will arise.[36] I accept Mr Stanton’s evidence that the FTM system  is not intended to absolve a flight examiner of the responsibility to ensure regulatory compliance, and that it will not consider, flag or identify all errors inputted by a flight examiner. 

[34] Transcript page 363, lines 21-22, page 388, lines 5-6.

[35] Regulations 61.1295(4)(b)(ii); 61.1300; and 61.1305(1),(3).

[36] Exhibit 4 (Applicant’s further supplementary statement dated 4 September 2020), [55].

Persons onboard during emergency procedures

38.On at least four occasions between 2 May 2018 and 20 June 2018, Mr Schott, as the pilot-in-command, permitted the carriage of passive persons (i.e. persons taking no role in the actual operation of the aircraft) onboard an aircraft during flight tests whilst emergency procedures were being conducted.

39.It is obvious that the undertaking of emergency procedures especially during flight testing carries with it an increased risk to aviation safety. Such risks are only compounded if the applicant pilot being assessed mishandles the response.[37] CAR r 249 prohibits the carriage of passengers onboard an aircraft whilst emergency procedures are being conducted. I accept CASA’s submission that even without an express prohibition, a sensible and responsible flight examiner would not carry non-essential persons during flights involving emergency procedures.[38]

[37] Exhibit 22 (Stanton’s Statement), [113(c)].

[38] Respondent’s submissions, [170].

40.According to Mr Schott these persons were “auditors” for the purposes of these flights and consequently not “passengers”, but members of the crew. He said: “These were people associated with the flights who never paid to book a flight from A to B. They were pilots who were making sure that the flight was conducted in accordance with our emergency procedures.”[39] He said there were “four auditors on eight flights … the course was always two flights each”.[40] Elsewhere he said there were more than four, but he did not know exactly how many.[41] Mr Schott claimed that the presence of these “auditors” was “vital for the running of the safety management system”.[42] I do not accept that and, in the circumstances, and having seen and heard Mr Schott, I do not accept that is or was his belief.

[39] Transcript page 27, lines 26-29.

[40] Transcript page 29, lines 15-16.

[41] Transcript page 63, lines 25-26.

[42] Transcript, page 104, lines 36-39.

41.These so-called auditors were not on any definition genuinely “crew”. They were Mr Schott’s students, whom he “tasked” to go on the flights. They did so, as Mr Schott admitted, to gain credits for their CVs. They were not employed or paid to conduct audits.[43] None of them held sufficient qualifications or the necessary expertise to discharge the supposed duty they were tasked. Each of the eight or more flights were undertaken within a relatively short period of about seven weeks. This alone suggests the real motivating factor was something other than a formal and critical analysis of the performance of a flight test. No sufficient documentary material was produced in support of any audits. Mr Schott’s evidence was that it was “not normal” to keep the audit forms if no adverse finding was made.[44] In apparent contradiction, Mr Schott also said that the destruction of the forms occurred against his instructions.[45]

[43] Transcript page 64, lines 39-46.

[44] Transcript page 79, lines 38-46; and page 80, lines 1-5.

[45] Transcript page 81.

42.I accept CASA’s submission that it is a contrivance for Mr Schott to suggest, as he does, that the persons he tasked to undertake the role of auditor on these flights could legitimately discharge that task and add value or benefit to any safety management system.[46] There is some evidence that there was a cost-saving for each of these persons agreeing to be an “auditor”.[47] Whether this was the case or not, I accept CASA’s submission that there was no legitimate or defensible reason for the presence of those four persons on any flight involving the performance by a flight examiner of his or her duties, much less on flights involving simulated emergencies.[48] It was an entirely unnecessary and redundant “task” that added no, or no meaningful, value to Mr Schott, Air Queensland (the operator) or the flight crew licensing scheme regulated by CASA. It came at the wholly avoidable expense of exposing inexperienced persons to a heightened safety risk. Overwhelmingly, the witnesses called by Mr Schott with comparable or similar levels of experience to him rejected any suggestion that it was appropriate for applicant pilots to be present during the conduct of emergency procedures.[49]

[46] Respondent’s Submissions, [175].

[47] Exhibit 1 (Tribunal Document 66, page 223 (Mr Healy’s Investigation Report, [19], [20])); transcript page 461, lines 31-47; page 462, lines 1-47; page 463, lines 1-2; Exhibit 13 (Healy Statement at [46]-[48], attachment TH05); Exhibit 1 (Tribunal Document 66, pages 306-309).

[48] Respondent’s Submissions, [178].

[49] Mr Heath, transcript page 187, lines 20-47; page 188, lines 1-22; page 190, lines 35-36; Mr Todhunter, transcript page 216, lines 7-12; and Timothy Baker, transcript page 270, lines 26-46.

43.It is not correct to say that CASA in any way approved the undertaking of audits by proportionately inexperienced pilots whilst emergency procedures were being conducted. The CASA approved Air Queensland Operations Manual is irrelevant to the undertaking of flight-testing activities. The Operations Manual produced by Mr Schott on the second day of the hearing[50] is a draft, which has never been approved by CASA[51] and, in any event, does not purport to require or authorise the auditing of flight tests whilst emergency procedures are being conducted.

[50] Exhibit 6.

[51] Exhibit 18 (Statement of Alison Gosper dated 5 March 2021, [17]-[21]).

44.It is not unfair to say, as CASA submitted, that Mr Schott relied upon a series of unsustainable positions as to his authority to audit flight tests when it became clear that his reliance upon the Air Queensland Operations Manual was unsustainable.[52] I reject all of Mr Schott’s various attempts to justify these persons’ presence on the flights during emergency activities by reference to various regulations. In particular, if they were genuinely auditors, which I reject, they had no “duty” on board the aircraft such that they could be described as “crew” or a “crew member” within the CAR or CASR. The conduct of the flight tests was not dependent – either directly or indirectly – upon the presence or absence of an auditor.

[52] Transcript, page 90, lines 28-46, and page 91, lines 1-30.

45.I reject of course Mr Schott’s attempt to rely upon a regulation that is not yet in force.[53] I reject his reliance upon the IATA Operational Safety Audit Program as misconceived. Furthermore, so far as Mr Schott says that he actually relied upon any of these regulations (or proposed regulations) or the IATA program at the time, I do not accept his evidence. I am satisfied these matters are advanced retrospectively in an attempt to explain and excuse the presence of persons on board aircraft during activities and manoeuvres they ought, on any sensible view, to have been excluded from.

[53] Civil Aviation Safety Amendment (Part 91) Regulations 2019 (Cth) r 91.725, Exhibit 16, Document 5.

46.Mr Schott apparently still believes that his conduct was appropriate and produced the safest outcome for aviation safety.[54] He described any prohibition on an applicant pilot auditing flight test activities and emergency procedures as “preposterous”,[55] and said that he should be rewarded, not punished, for such conduct.[56] Mr Schott contends, and says that he still believes, that his conduct was not only lawful,[57] but appropriate, beneficial and in accordance with best practice. This is remarkable, as CASA submits.[58] Also alarming is Mr Schott’s contention that his carriage of passive observers whilst emergency procedures were being conducted involved each of the passive observers “knowingly acquiesc[ing] to the increased risk to their health and safety”.[59] I accept CASA’s submissions that the carriage of those four persons in the circumstances is demonstrative of unfitness or impropriety as a flight examiner.

[54] Transcript, page 103, lines 41-45; page 104, lines 1-34; page 129, lines 24-25; page 130, lines 7-47; page 147, lines 6-44.

[55] Transcript, page 104, lines 28-34

[56] Transcript, page 146, Lines 9-24.

[57] Transcript page 26, line 47; page 27, lines 1-4.

[58] Respondent’s Submissions, [153], [162].

[59] Exhibit 1 (Tribunal Document 76, pages 323, 362 (Mr Schott’s ‘Response to Notice of Proposed Action’)); transcript page 122, lines 1-46.

Fitness and propriety

47.In the well-known case of Hughes and Vale Pty Ltd v State of NSW,[60] the High Court said that the words “fit and proper” have generally been used in relation to persons holding vocations or offices:

But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”—Coke.

[60] (1955) 93 CLR 127, page 156.

48.In Australian Broadcasting Tribunal v Bond,[61] Toohey and Gaudron JJ said:

The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

[61] (1990) 170 CLR 321, page 380.

49.In Re Griffiths and Civil Aviation Authority,[62] the Tribunal determined that, in considering the meaning of the term “fit and proper person” in CAR r 269(1)(d), it should, conformably with the above principles, consider the fitness and propriety of a licence holder taking into account the responsibilities, functions and duties of the holder of such a licence and the ends to be served by those activities.

[62] (1994) 34 ALD 554.

50.In Cole and Civil Aviation Safety Authority[63] the Tribunal said that matters which demonstrate that the applicant, in various circumstances, failed in his or her duty with respect to matters affecting the safe navigation or operation of an aircraft, also demonstrate that he or she is not a fit and proper person to have the responsibilities, and perform the functions and duties, of a holder of a relevant licence.

[63] [2004] AATA 1092, [152].

51.As CASA submits the role of flight examiner requires independence, expertise, comprehensive knowledge, sound judgment and meticulous attention to regulatory compliance, and its attendant responsibilities are necessarily of a much higher order than others in the aviation industry.[64] I accept that Mr Schott’s conduct does not meet the requisite standard.

[64] Ekinci and Civil Aviation Safety Authority [2014] AATA 424, [124].

52.I also accept that Mr Schott’s conduct, including in these proceedings, displays in general an inability or unwillingness to acknowledge any shortcomings or breaches of the requirements of his role as a flight examiner. To the contrary, as CASA submits, “Mr Schott seeks to legitimatise all aspects of his conduct; displays over-confidence; seeks to deflect any responsibility onto others (primarily, CASA); exhibits a reluctance or inability to accept the views of others; shows a lack of insight and considered reflection; and has not demonstrated any meaningful contrition or remorse.”

53.Mr Schott maintained that given his behaviour had changed, in particular, in that he had ceased to carry “auditors” on board during emergency procedures, he had demonstrated he was a fit and proper person to be a flight examiner.[65] This does not address his attitude, which he considers less important, and which in my view remains unchanged. He lacks any significant insight into his non-compliant behaviour and – in large part – is unwilling or unable to accept he has made any or any noteworthy errors.  Mr Schott’s failure to contact CASA for assistance is also of concern.[66]

[65] Transcript page 147, lines 46-47; page 148, lines 1-21.

[66] Exhibit 22 (Stanton Statement, [136]).

54.I accept CASA’s submission that the evidence establishes on the part of Mr Schott a fundamental underlying and systemic lack of knowledge or application as to the mandatory standards to be applied. “That is, the root cause of the issues before the Tribunal is Mr Schott’s continued misunderstanding of the regulatory regime which is pervasive and infects much of his previous conduct as a flight examiner.”[67]

[67] Ibid, [129]-[130].

55.CASA submits:

Mr Schott’s knowledge deficiencies and administrative shortcomings are considerably broader than instrument rating flight tests. Rather, those shortcomings are widespread and denote an inability (or unwillingness) to discharge the core functions of a flight examiner for any flight-testing activity.[68] Mr Schott’s steadfast and unwavering belief in his own interpretation of what a flight examiner is authorised to do permits no reasonable assessment that Mr Schott will be able to adequately discharge the high responsibilities and obligations of that role regardless of the type of flight test.[69]

[68] Ibid, [137].

[69] Ibid, [134]-[135].

56.I accept these submissions. For the reasons set out above I am satisfied that Mr Schott did contravene CAR r 249 and CASR r 61.885 each on a number of occasions. I am satisfied he has failed in his duty as the holder of an FER in a manner affecting the safe operation and navigation of an aircraft. I am satisfied that he is not a fit and proper person to hold an FER.

57.As CASA submits the following matters are relevant to the decision as to the action to be taken:

(a)the safety of air navigation is the most important consideration: CAA s 9A;[70]

(b)any hardship to Mr Schott is not rationally connected to the question of whether one or more of the grounds in CAR r 269 has been established. Whilst hardship may be taken into account in terms of the correct or preferable decision, the Tribunal is not bound to do so, and cannot deviate from the statutory direction in (a) above, whether by reference to notions of hardship or otherwise;[71]

(c)the Tribunal should consider Mr Schott’s past record of compliance as indicative of the likelihood of complying or not complying with the regulations in the future, and his respect or lack of respect for the regulations in civil aviation legislation generally;[72]

(d)general deterrence is an important consideration.  The Tribunal may take the view that it is necessary to send a clear message to the aviation community that the impugned conduct is unacceptable;[73]

(e)specific deterrence is equally relevant, to ensure that Mr Schott is aware and understands the gravity of, and is afforded the opportunity to reflect upon, his conduct;[74]

(f)a more lenient regulatory response may be justified where an applicant has the intelligence and insight to appreciate his or her errors and learn from them;[75] and

(g)the object or purpose is not to punish an applicant, but rather to achieve the objects of safety of air navigation, public protection and the maintenance of proper and professional standards.[76]

[70] Pantovic and Civil Aviation Safety Authority [2015] AATA 992, [110]; Hanley and Civil Aviation Safety Authority [2012] AATA 820, [13].

[71] Anderson v Civil Aviation Safety Authority [2013] FCA 1367, [15] (Jagot J); Civil Aviation Safety Authorityv Central Aviation Pty Ltd [2009] FCA 49m [42]-[43] (Perram J).

[72] Ekinci and Civil Aviation Safety Authority [2014] AATA 424, [10]; Repacholi and Civil Aviation Safety Authority [2003] AATA 573, [89].

[73] Pantovic and Civil Aviation Safety Authority [2015] AATA 992, [118].

[74] Jones and Civil Aviation Safety Authority [2014] AATA 820, [103]-[104].

[75] Ibid, [96], [104]; Pantovic and Civil Aviation Safety Authority [2015] AATA 992, [116].

[76] Ekinci and Civil Aviation Safety Authority (2014) 227 FCR 459; [2014] FCAFC 180, [74] (Bennett, Nicholas and Griffiths JJ).

58.Mr Schott submitted that, if anything, he should be required to submit to an enforceable voluntary undertaking.   However, I am satisfied that Mr Schott’s deficiencies cannot be satisfactorily managed by way of an enforceable voluntary undertaking or a suspension. As CASA submits:[77]

(a)Mr Schott’s knowledge deficiencies cannot be sufficiently remedied by any training CASA might be able to facilitate;

(b)CASA does not have the resources or the capacity to undertake the monitoring and surveillance necessary to quality assure the performance of safe flight testing and proficiency checking by Mr Schott; and

(c)in any event, the Tribunal would need to be satisfied that Mr Schott’s fitness and propriety to hold an FER would be restored by the relevant undertaking(s) or period of suspension.

[77] Ibid, [138]-[139]. Transcript page 601, lines 31-47; page 602, lines 1-5; page 627, lines 36-45; page 629, lines 10-16; page 630, lines 10-25; page 663, lines 7-47; page 664, lines 1-3.

59.As to (c) above, I am not satisfied.  I have taken into account the matters referred to above. Mr Schott remains a pilot and a flight instructor. Those privileges are not in issue. I accept, however, that anything less than cancellation of his FER is insufficient to address Mr Schott’s lack of fitness and propriety to be a flight examiner.

Conclusion

60.The reviewable decision should be affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

.............[SGD]............

Associate

Dated: 23 June 2021

Date of hearing:	1 - 5 March 2021; 29 - 31 March 2021; 1 April 2021
Applicant:	Self-represented
Respondent’s Solicitor:	Ms Tanya Canny
Respondent’s Counsel:	Mr Mark Eade