Strange and Civil Aviation Safety Authority
[2002] AATA 240
•12 April 2002
DECISION AND REASONS FOR DECISION [2002] AATA 240
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2001/16
GENERAL ADMINISTRATIVE DIVISION )
Re MARK STRANGE
Applicant
And CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Mr I R Way, Member
Date12 April 2002
PlaceBrisbane
Decision The Tribunal determines that the decision under review is varied so that: (a) the Tribunal affirms that part of the reviewable decision whereby, with respect to CASA file 088700, the respondent refused to amend folios 258-266 inclusive, folio 273 and yellow post-it note on file cover; (b) the Tribunal affirms that part of the reviewable decision whereby, with respect to CASA file 99/8655, the respondent refused to amend folios 25 and 26; (c) that part of the reviewable decision which refused to amend folio 257 of CASA file 088700 is set aside and in substitution therefor the Tribunal determines that folio 257 is to be retained on CASA file 088700 with attached the following annotation: "This document has been held by the Administrative Appeals Tribunal to contain information that is factually incorrect. The respect in which the information is incorrect is that the document incorrectly refers to the date of an incident affecting the distance measuring equipment of B747 registration number VH-EAA as 24 August 2000 whereas it should be 1 September 2000."
..............................................
Member
CATCHWORDS
FREEDOM OF INFORMATION – whether information contained in record is incomplete, incorrect, out-of-date or misleading – whether Tribunal has the power to rescind document – amendment and annotation of document
Freedom of Information Act 1982 s 48, 49, 50, 51, 54
Civil Aviation Act 1988
Civil Aviation Regulations 1988
Re Cox and Department of Defence (AAT 5659, 2 February 1990)
Re Olsson and Australian Bureau of Statistics (AAT 2635, 18 April 1986)
Wiseman v Department of Communications (1984) 12 ALD 707
REASONS FOR DECISION
12 April 2002 Mr I R Way, Member
This is an application by Mark Strange (the "applicant") for review of a decision of a delegate of the Civil Aviation Safety Authority ("CASA") to refuse the applicant's request, under section 48 of the Freedom of Information Act 1982 (the "Act") to amend his personal records held by CASA.
The initial decision refusing the applicant's request for amendment of his personal records was made on 12 December 2000 and this decision was affirmed on internal review under section 54 of the Act on 15 January 2001.
The parties agreed and the Tribunal accepts that the Tribunal should proceed to make its decision on the papers before it, without proceeding to a full hearing.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T19 – Exhibit T1) and documentary evidence as follows:
Statement of evidence by the applicant dated 28 May 2001 Exhibit A1
Additional statement of evidence by the applicant
Dated 10 September 2001 Exhibit A2
Statement of evidence by Captain William John Ray Hamilton
Dated 6 September 2001 Exhibit A3
Statement of evidence by Captain Ivan Robert Duncan Exhibit A4
Dated 3 September 2001
Statement of evidence by Andrew Pridham dated 28 May 2001 Exhibit A5
Statement of evidence by Rodney Smith dated 28 May 2000 Exhibit A6
Copy of CASA Flight Safety Australia magazine (March/April 2000) Exhibit A7
Witness statement Jim Hanna dated 6 July 2001 Exhibit R1
The Tribunal also had before it the written submissions of the applicant dated 25 September 2001, the written submissions of the respondent dated 19 October 2001 and the applicant's written reply to the respondent's submission dated 25 October 2001.
The following facts are not in dispute and the Tribunal finds accordingly:
(a)that the applicant holds an aircraft maintenance engineers (AME) licence from CASA to carry out maintenance on the engines and airframes of 747 aircraft; and a maintenance authority from CASA which authorises him to carry out minor electrical instrument and radio repairs on Boeing 737-300/400 only;
(b)that the applicant has since 1975 been an engineer with Australian Airlines now integrated into Qantas and with Qantas as it is today; and
(c)that the applicant at all relevant times was an employee of Qantas in charge of engineering maintenance of Qantas aircraft transiting through Darwin.
Summary of Applicant's Contentions
The applicant seeks to have a number of documents removed from his CASA file. These documents relate to two separate occurrences, one on 24 August and one on 1 September 2000. On each of these occasions the applicant made entries in the technical log of a Boeing 747 aircraft transiting through Darwin which CASA determined to be unauthorised maintenance or certification. It is contended that the applicant's actions did not constitute maintenance and that every filed document that resulted from CASA's decision should be removed and destroyed as being unreasonably prejudicial to his reputation within CASA and potentially unreasonably influential in any future disagreement between CASA and Mr Strange.
In the alternative it was submitted that if Mr Strange's actions did constitute maintenance, CASA's actions in suspending his licence and requiring him to undergo an examination in the airworthiness administration requirements of his licence were unreasonable in all the circumstances and in so far as the licence suspension goes were against the policy of the authority as indicated in the Press Club Speech of the Chief Executive Officer of CASA, reported in the March/April 2001 edition of Flight Safety Australia.
The various documents which the applicant seeks to have removed from his file are included in the T documents and each document is considered in detail subsequently in these reasons for decision.
It should be noted that because of the above-mentioned occurrences CASA suspended the applicant's AME licence on 21 September 2000 until he passed an examination. On 29 September 2000 CASA revoked the suspension of the applicant's AME licence as he had passed the examination on 28 September 2000.
Legislative and Regulations FrameworkThe Act relevantly provides as follows:
"PART V - AMENDMENT AND ANNOTATION OF PERSONAL RECORDS
Application for amendment or annotation of personal records48. Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:
(a) that is incomplete, incorrect, out of date or misleading; and
(b) that has been used, is being used or is available for use by the agencyor Minister for an administrative purpose;
the person may apply to the agency or Minister for:(c) an amendment; or
(d) an annotation;of the record of that information kept by the agency or Minister.
Requirements of an application for amendment
49. An application for amendment must:(a) be in writing; and
(b) as far as practicable, specify:
(i)the document or official document containing the record of personal information that is claimed to require amendment; and
(ii)the information that is claimed to be incomplete, incorrect, out of date or misleading; and
(iii)whether the information is claimed to be incomplete, incorrect, out of date or misleading; and
(iv)the applicant's reasons for so claiming; and
(v)the amendment requested by the applicant; and
(c) specify an address in Australia to which a notice under this Part may be sent to the applicant; and
(d) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of the office of the agency or Minister (as the case may be) determined in accordance with paragraph 15(2)(d).
Amendment of records
50. (1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:(a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and
(b) the information is incomplete, incorrect, out of date or misleading;and
(c)the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose; the agency or Minister may amend the record of information.
(2) The agency or Minister may make the amendment:
(a)by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or
(b) by adding to that document or official document a note:
(i)specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii)in a case where the agency or Minister is satisfied that the information is out of date - setting out such information as is required to bring the information up to date.
(3) To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2) (a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.
Annotations of records etc following unsuccessful applications for amendments of records
51. (1) Where an agency or Minister decides not to amend a document or official documents wholly or partly in accordance with an application under section 48, the agency or Minister must:(a) take such steps as are reasonable in the circumstances to enable the applicant to provide a statement of the kind mentioned in paragraph 51A(c); and
(b) subject to subsection (2), annotate the document or official document concerned by adding to it the statement so provided.
(2) Paragraph (1)(b) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.
(3) For the purposes of this Act, the provision by the applicant of a statement under subsection (1) is taken to be an application made under section 51A on the day the statement is so provided.
Requirements of an application for annotation
51A. An application for annotation must:(a) be in writing; and
(b) as far as practicable, specify the document or official document containing the record of personal information that is claimed to require annotation; and
(c) be accompanied by a statement by the applicant that specifies:
(i)the information that is claimed to be incomplete, incorrect, out of date or misleading; and
(ii)whether the information is claimed to be incomplete, incorrect, out of date or misleading; and
(iii)the applicant's reasons for so claiming; and
(iv)such other information as would make the information complete, correct, up to date or not misleading; and
(d) specify an address in Australia to which a notice under this Part may be sent to the applicant; and
(e)be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of the office of the agency or Minister (as the case may be) determined in accordance with paragraph 15(2)(d).
Annotation of records
51B. (1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister (as the case may be), the agency or Minister must annotate the document or official document by adding to it the statement provided by the applicant under paragraph 51A(c).
(2) Subsection (1) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous."
The Civil Aviation Act 1988 relevantly provides as follows:
"20AB Flying aircraft without licence etc.
(2) A person must not carry out maintenance on:
(a) an Australian aircraft in Australian territory; or
(b) an aircraft component for such an aircraft; or
(c) aircraft material for such an aircraft;
unless the person is permitted by the regulations to carry out that maintenance.
Penalty: Imprisonment for 2 years.
(3) Nothing in subsection (1) or (2) limits the power to make regulations under this Act that provide for an offence of undertaking another activity without the appropriate civil aviation authorisation or special authorisation under the regulations.
(4) In this section, aircraft component, aircraft material, flight time and maintenance have the same meanings as in the regulations."
The Civil Aviation Regulations 1988 relevantly provide as follows:
PART 1 - PRELIMINARY
"Interpretation [see Note 3]
2. (1) In these Regulations, unless the contrary intention appears:
"aircraft maintenance engineer licence" means an aircraft maintenance engineer licence in force under regulation 31;
"aircraft maintenance record" means:(a) an aircraft log book; or
(b) an approved alternative maintenance record;"approved maintenance data", in relation to an aircraft, aircraft component or aircraft material, has the meaning given by regulation 2A;
"approved system of certification of completion of maintenance" means a system of certification of completion of maintenance for which an approval under regulation 42ZG is in force;
"approved system of maintenance", in relation to an Australian aircraft, means a system of maintenance for the aircraft in relation to which an approval under regulation 42M is in force;
"maintenance" means:(a) in relation to an aircraft:
(i)the doing of any work (including a modification or repair) on the aircraft that may affect the safety of the aircraft or cause the aircraft to become a danger to person or property; or
(ii) the making of a test or an inspection for the purpose of ascertaining whether the aircraft is in a fit state for flying; or
(b) in relation to an aircraft component or aircraft material:
(i)the doing of any work (including a modification or repair) on the aircraft component or aircraft material that may affect its soundness or correct functioning; or
(ii) the making of a test or an inspection for the purpose of ascertaining whether the aircraft component or aircraft material is sound or functioning correctly;
"maintenance release" means a maintenance release in force under regulation 43;
Certificates of Approval
(2A) CASA must grant the applicant a certificate of approval covering the activities to which the application relates if CASA is satisfied that the applicant is able to carry out the activities in a satisfactory manner.
(2D) A system of quality control must be in writing and must contain the following:(a)the procedures to be followed in connection with the carrying out of the activities covered by the certificate that, in particular, includes procedures for:
(i) the control of the work carried out under the certificate; and
(ii) the maintenance, control and calibration of equipment; and
(iii) the control of stores;(b) a statement:
(i) that sets out the places at which the activities covered by certificate are, or will be, carried out and which activities are, or will be, carried out at each place; and
(ii) that identifies any mobile facilities available to the certificate of approval holder for the carrying out of the activities covered by the certificate and which activities are, or will be, carried out using each mobile facility;
(c)in relation to each activity covered by the certificate that is required, by paragraph (2C) (c), to be carried out under the control of a person - the name of the position occupied by the person who controls the carrying out of the activity;
(d)a description of the applicant's organisational structure, the responsibilities of employees within the structure and the procedures to be followed by the employees in undertaking the activities covered by the certificate;
(e)a description of the resources for implementing quality management;
(f)a description of the audit system applying to the system of quality control;
(g)if the quality control system is set out in a procedures manual required under paragraph (2) (c) - a statement of the procedures to be followed in relation to the amendment of the procedures manual.
Aircraft maintenance engineer licences
31. (1) A qualified person may apply to CASA for the issue of an aircraft maintenance engineer licence in one or more of the following categories:(a) airframes;
(b) engines;
(c) radio;(d) electrical;
(e) instruments.
(1A) CASA may issue to the person a licence in the category specified in the application.
(1B) When issuing a licence, CASA must endorse it with the category in which the licence is issued.
(2A) A person must not carry out work that exceeds the limits of the work specified in an endorsement on his or her licence.
Penalty: 25 penalty units.
Testing of competency of holder of licence or authority
33. (1) CASA may, at any time, require the holder of an aircraft maintenance engineer licence, an airworthiness authority or an aircraft welding authority to undergo an examination designed to test his or her competency as such a holder.
System of maintenance: matters to be included
42L. A system of maintenance for an aircraft must include:(a) a schedule that:
(i)sets out the regular maintenance inspections, tests and checks to be carried out on the aircraft; and
(ii)sets out when those maintenance inspections, tests and checks are to be carried out; and
(iii)nominates one of the maintenance inspections referred to in subparagraph (i) as the inspection to be carried out for the purposes of determining whether a maintenance release should be issued for the aircraft; and
(e) a schedule that sets out the procedures to be followed in carrying out the inspections, tests and checks required by the system of maintenance; and
(f) if permissible unserviceabilities have been approved for the aircraft under subregulation 37 (1) in the form of a minimum equipment list – that list; and
System of maintenance: approval
42M. (1) If:(a) CASA or an authorised person receives a request for approval of a system of maintenance; and
(b) CASA or authorised person is satisfied that:
(i) the system includes the matters set out in regulation 42L; and
(ii)the system adequately provides for the continued airworthiness of the aircraft;
CASA or authorised person must approve the system.
Maintenance on Australian aircraft in Australian territory
42ZC.
(2) The holder of the certificate of registration for, or the operator or pilot in command of, an Australian aircraft must not authorise or permit any maintenance to be carried out on the aircraft in Australian territory except by a person who is permitted by this regulation to carry out the maintenance.
Penalty: 50 penalty units.
(3) Subject to sub-regulation (5), a person may carry out maintenance on a class A aircraft in Australian territory if:(a) the person:
(i)holds an aircraft maintenance engineer licence, an airworthiness authority or an aircraft welding authority covering the maintenance; and
(ii) either:
(A) holds a certificate of approval covering the maintenance; or
(B) is employed by, or working under an arrangement with, a person who holds a certificate of approval covering the maintenance; or
(b) the following requirements are satisfied:
(i)the person is employed by, or working under an arrangement with, a person who holds a certificate of approval covering the maintenance; and
(ii)the maintenance is carried out under the supervision of a person who holds an aircraft maintenance engineer licence covering the maintenance and who either:
(A) holds a certificate of approval covering the maintenance; or
(B) is employed by, or working under an arrangement with, a person who holds a certificate of approval covering the maintenance; or
(c) the person is a pilot of the aircraft and is authorised to carry out the maintenance by the aircraft's approved system of maintenance; or
(d)the person is authorised by CASA under subregulation (6), or an authorised person under subregulation (7), to carry out the maintenance and the maintenance is carried out in accordance with any conditions subject to which the authorisation is given.
Certification of completion of maintenance on aircraft in Australian territory
42ZE. (1) A person who carries out maintenance on an Australian aircraft in Australian territory must ensure that completion of the maintenance is certified in accordance with:(a) if the person has an approved system of certification of completion of maintenance - that system; or
(b) if paragraph (a) does not apply - the CASA system of certification of completion of maintenance.
Penalty: 50 penalty units.
Suspension of licence or authority for purpose of examination
265. (1) If:(a) CASA requires the holder of a licence to undergo an examination under regulation 33, 107 or 117; or
(b) a senior flying operations inspector requires the holder of a licence to undergo an examination under regulation 5.38; or
(c) CASA requires the holder of an authority to undergo an examination under regulation 33;
CASA may suspend the licence or authority by giving the holder of the licence or authority written notice of the suspension.
(2) Where the result of the examination does not show any ground on which the licence or authority may be suspended or cancelled, CASA shall forthwith terminate the suspension of the licence or authority and, by notice in writing served on the holder of the licence or authority, notify the holder that the suspension has been so terminated.
(3) Where CASA, upon the result of the examination becoming known, does not terminate the suspension in accordance with subregulation (2) but gives to the holder of the licence or authority a notice under subregulation 269 (3), the licence or authority shall remain suspended during the time specified by CASA in that notice as the time within which the holder of the licence or authority may show cause why the licence or authority should not be varied, suspended or cancelled under regulation 269.
Offences in relation to licences, certificates and authorities
282. (1) A person shall not, unless specially permitted by or under these Regulations, perform any duty or exercise any function or do any act for which:(a) a licence;
(b) a certificate; or
(c) a rating or other endorsement on a licence or certificate; is required under these Regulations, without holding:
(d) the appropriate licence or certificate; or
(e) a licence or certificate containing the appropriate rating or other endorsement.
Penalty: 50 penalty units."
Applicant's Evidence
In his written statement (Exhibit A1) the applicant stated that until August 2000 he had not been subject to any adverse comment or action by CASA during his career as an engineer.
In his statement the applicant sets out the circumstances of the two occurrences relevant to this matter as follows:
"4. On 24 August 2000, I was the senior Qantas engineer in Darwin, responsible for the oversight of maintenance that needed to be carried out on company aircraft transiting through Darwin. Our company Boeing 747, VH-EAA, arrived in Darwin, and I checked the Technical Log and the Cabin Condition Log of the aircraft to see if any problems were reported. The Cabin Condition Log had one report – 'CCL04D PA system when in use drops out from any station (logged previously)' and appears at folio 35 of the T documents. CCL stands for Cabin Condition Log. I discussed the public address (PA) report with the Cabin Service Manager, explaining to him that I was licensed for engine and airframe work on Boeing 747 aircraft, and could not carry out maintenance of the PA, and informing him that our engineer who was licensed to work on the PA was not rostered on duty that day.
5. The Cabin Service Manager said that 'sometimes when they operate the PA the volume drops down and when they reset it, it goes back to normal, however the PA is still operational' or words to that effect. This item could have remained in the Cabin Condition Log with no certification at all as it was not an airworthiness problem, as the PA was serviceable. I transferred the entry in the Cabin Condition Log to the Technical Log for company convenience only. I did not need to make the Technical Log entry that is shown at folio 35 of the T documents. The entry I made after noting the original Cabin Condition Log entry in the Technical Log read 'to Hold due previous history'.
6. On 1 Sept 2000, I was the senior Qantas engineer in Darwin, responsible for the oversignt of maintenance that needed to be carried out on company aircraft transiting through Darwin. Our company Boeing 747, VH-EAA, arrived in Darwin, and I checked the Technical Log of the aircraft to see if any problems existed. The Log had one report 'F/O DME#1 ind – 3rd digit from left blank when figure 8 should appear', and appears at folio 36 of the T documents. This meant that one light emitting diode on one of the numbers on the First Officer's distance measuring equipment indicator in the cock pit was not working.
7. I discussed the distance measuring equipment (DME) report with the aircraft Captain and the Flight Engineer, explaining to them that I was licensed for engine and airframe work on Boeing 747 aircraft, and could not carry out maintenance on the DME. I explained that the company had an engineer who was licensed to work on the DME but he was not rostered on duty that day. I also explained that we did not have a spare DME indicator in Darwin.
8. The Captain said that it would be pointless to call the off duty engineer for the DME matter, as in his view the DME was serviceable (still useable), and said 'put it to Hold so that it would be rectified at the next station, or when a spare was available'.
9. With the concurrence of the Captain, and with the knowledge that the DME was still serviceable, I decided that maintenance on the items would be deferred until the aircraft arrived in Sydney, and, in accordance with company instructions, made an entry in the Technical Log for the DME which stated 'To Hold. Still able to operate #1 DME. Replacement req. when spare available'."
It was the applicant's evidence that he did not consider that he had certified for maintenance on the two items by making the technical log entries because no maintenance had been carried out on either item of equipment. He said he could have arranged for the entries he made in the technical log to be made by an engineer licensed to maintain the DME and PA but it would have delayed the departure of the aircraft and would not have resulted in any physical change to the aircraft situation as he did not consider that any maintenance had been carried out. He further said that he considered the penalty of having his licence suspended and having a record of that suspension on his files is a penalty out of proportion to the alleged offence.
The applicant referred the Tribunal to the Director of CASA's comments in the March/April edition of the CASA magazine, Flight Safety Australia (Exhibit A7), where the Director said:
"We do not go round pulling people's certificates for fun. We don't do it very often. If we do it twice or three times a year I would be surprised. I would only condone the removal of a certificate when we have strong evidence that there is an immediate threat to air safety."
On this basis the applicant said that it was implied that the CASA officer who suspended his licence considered that what he did constituted an immediate threat to air-safety or alternatively the CASA officer was not aware of CASA's policy as stated by the Director.
The applicant concluded by saying that:
"If the Tribunal finds that my actions did not constitute maintenance or certification of maintenance, I consider that the decision to refuse to remove the folios as requested should not stand because all of the folios concerned arose from my actions on the 24 August 2000 and 1 September 2000 and from subsequent events."
The Tribunal notes that the applicant in an additional statement (Exhibit A2) produced evidence to explain and show details of distance measuring equipment and the nature and scope of the defect in this equipment. And further drew the Tribunal's attention to a CASA circular letter entitled "Important news about aviation regulatory reform" where it is stated:
"we are doing this re-write (of the Civil Aviation Regulations) because it is widely thought that current Australian Legislation is overly prescriptive, and ambiguous, disjointed, too reliant on exemptions and difficult to interpret to comply with and enforce."
It was the applicant's evidence that subsequent rectification of the defects in the PA system and in the DME does not in any way indicate that what he did on the 24 August and 1 September with respect to these items, constituted maintenance. He said that what he did on each occasion was on instructions from the Captain of the aircraft who considered that the aircraft was fit for further flight. With respect to the responsibilities of the Captain of an aircraft viz the responsibilities of an AME, the applicant drew the Tribunal's attention to the Qantas Dispatch Deviation Guide (DDG) with respect to Minimum Equipment Lists (MEL) and DDG (Exhibit A2).
The Tribunal notes:
(a)the MEL outlines the circumstances under which an aeroplane may be released by engineers for dispatch with certain equipment inoperative to proceed to a station, where time and spares are available to effect rectification;
(b)the purpose of the MEL is to minimise delay to aeroplane schedules by specifying those components or systems which may remain inoperative for further flight whilst meeting airworthiness requirements and operational standards;
(c)inoperative items should be rectified at the first station where time and spares permit;
(d)if the Captain is available, the Captain's agreement shall be obtained prior to application of the MEL by licensed aircraft maintenance engineers (LAME);
(e)the Captain may accept a defect without consulting the LAME after doors are closed, provided the defect is covered by an MEL item and does not require a maintenance specific procedure to configure the aeroplane for flight; and
(f)the (o) annotations indicates normal flight crew procedures are modified or supplemented to account for the in-operative items;
(g)a PA system requires the (o) annotation for dispatch which allows for one PA amplifier to be inoperative subject to certain provisions; and
(h)DME requires the annotation (o) for dispatch.
Following the above DDG the applicant stated that the normal chain of events in handling a defect in an aircraft or in a component fitted to an aircraft is as follows:
"(a)The flight crew advise the engineer in charge on arrival at a Qantas transit aerodrome of any defects;
(b)The engineer in charge arranges, if practicable, for the defect to be corrected;
(c)If the defect cannot be corrected within a reasonable time, the engineer consults with the flight crew, to get an indication on whether the aircraft or component is serviceable despite the defect;
(d)If the aircraft or component is considered to be serviceable despite the defect, the matter is put to the Captain, who accepts the aircraft for further flight with the defect, or declines to accept the aircraft until the defect is corrected, or until the Dispatch Deviations Guide (DDG) and Minimum Equipment List (MEL) is applied;
(e)If the defect is such that the aircraft or component is unserviceable, the Minimum Equipment List and Dispatch Deviations Guide is consulted…
(f)If the MEL DDG allows operation of the aircraft with the defect, the Captain's agreement to the application of the MEL is obtained before the MEL is applied.
(g)If the Captain is not available, the MEL may be applied, but before the aircraft is operated, the Captain must be satisfied that any resulting operational restrictions are acceptable for the flight. That means that the Captain must be advised of the application of the MEL/DDG, and accept the aircraft in that condition before the aircraft can operate;
(h)If application of the MEL/DDG required maintenance {an (M) note in the remarks section of the DDG}, the maintenance must be carried out by the appropriate engineer.
(i)When all necessary steps have been taken, the engineer in charge completes the Technical Log Coupon Type T, and the aircraft is ready for further operations so far as the ground engineers are concerned."
In support of the applicant's evidence Captain Hamilton, an experienced Qantas pilot who has held the status of a Company Captain for approximately 14 years stated (at Exhibit A3):
"That the pilot in command of the aircraft pursuant to Civil Aviation Regulations has the ultimate authority to determine that the aircraft is fit for flight, that the MEL determines the minimum airworthiness of the aircraft for flight and accepting an aircraft for flight is the absolute prerogative of the pilot in command."
With respect to the PA system Captain Hamilton said:
"40. Given the history of the PA system, it is normal, established and approved practice to refer such matters to Main Base (for Qantas International, Sydney, for Qantas domestic or Ansett, Melbourne) fur further investigations, and I am of the opinion that this is what Mr Strange did in transferring the item to the Technical Log with the words 'To Hold due previous history'.
41. Had the PA been completely unserviceable, it was within the authority of Mr Strange and the Captain to invoke the MEL and DDG or similar, and for the flight to proceed, and this is normal daily practice within Australia and internationally.
42. The decision is for the Captain alone. Mr Strange has no authority to reject the decision of the Captain, or to compel the Captain to accede to him as ground engineer."
With respect to the DME Captain Hamilton said:
"50. The only item unserviceable was the segment of one of two displays for the No 1 DME, the First Officer's indicator. The Captain's indicator, and the rest of the No 1 system was serviceable.
51. A single redundant component of a system being unserviceable or partially unserviceable does not render the whole system unserviceable.
52. Mr Strange did what would have been normally expected, and made a Technical Log entry to replace the First Officer's DME indicator when the aircraft returned to Sydney."
Captain Hamilton expressed the opinion that the applicant did not carry out maintenance as defined in CAR on either the PA system or the DME. He stated that a discussion "is not an inspection or test" and the necessary assessments in this case were made by the pilot in command and the applicant made relevant notifications in the aircraft technical log after consultation with and under the authority of the Captain.
In conclusion Captain Hamilton stated:
"68. In the situations that occurred in Darwin on 24 August 2000 and 1 September 2000, I consider that Mr Strange acted properly in relying on advice from the Captain and Cabin Service Manager as to the serviceability of the components, and as to there being no requirement to have the defects rectified or examined by the specialist engineer. I consider he acted properly in certifying that the aircraft was to operate with the defect.
…
70. There is no evidence that I have seen that any action by Mr Strange was other than normal and accepted day to day practice, supported by a long standing and well tested internationally recognised legal framework."
Captain I R Duncan, Chief Pilot of Wimray Pty Ltd since 1984 (at Exhibit A4) expressed a similar view by stating that:
"Pilots are trained and expected to decide whether a defect in a component, available for use in an aircraft they operate, renders the component unserviceable … It is a normal everyday part of being a pilot."
Mr A Pridham, Licensed Aircraft Engineer, authorised to carry out avionics maintenance in the category of instrument, electrical and radio, having read the T documents and Exhibit A1 stated that he did not consider Mr Strange's actions constituted maintenance.
Mr R Smith is a Licensed Aircraft Engineer, authorised to carry out aircraft maintenance on the engine and airframe of an aircraft. Having read the T documents and Exhibit A1 Mr Smith stated that if he were to find himself in the situation Mr Strange was in on 24 August and 1 September, he would do what Mr Strange did and that he did not consider his actions constituted maintenance.
The Tribunal notes that neither of the Captains nor any of the cabin services crew of the aircraft involved in this matter have provided any witness statements.
Mr J Hanna employed by CASA in Sydney Airline Operations has provided a written statement with respect to this matter (Exhibit R1). Mr Hanna's factual evidence about the circumstances of the incident on 24 August conforms with the evidence given by the applicant. However, Mr Hanna refers to the second incident as also occurring on 24 August whereas the applicant states that the incident occurred on 1 September. The Tribunal notes that at T19/30 Qantas technical log records 1 September 2000 as the date that this occurrence took place. Apart from the anomaly in the date Mr Hanna's evidence about the circumstances of the incident on 1 September 2000 conforms with the evidence given by the applicant.
With respect to maintenance procedures, Mr Hanna provided a comprehensive set of documents detailing Qantas maintenance procedures as set out in the Qantas Engineering and Maintenance Procedures Manual and in accordance with the CASA approved system of maintenance pursuant to regulation 42M of the CAR. In summary, Mr Hanna referred to extracts in the Manual requiring all completed maintenance to be certified by appropriate authorised persons; that the technical log is to be used for recording defects or damage to an aircraft following the issue of a maintenance release; and with respect to "hold items" that a certification that clears an aircraft for continued operations with a defect or damage shall not be made unless the person making the certificate considers that the defect or damage is an acceptable defect. It was Mr Hanna's evidence that the applicant did not hold the necessary qualifications to permit certification of maintenance on either the PA system or the DME and there was no endorsement on his licence to enable him to carry out work on Audio Distribution Systems (PA system) or on Radio Navigation Systems (DME) both falling within the radio category.
Mr Hanna stated that pursuant to CAO 20.11:
"A Boeing 747 shall be equipped with an approved and serviceable electronic public address system for the purpose of making announcements relative for emergency procedures. The system shall be an integral part of the aircraft and shall be accessible and capable of immediate of operation by the pilot in command … the transmission shall be audible throughout the passenger cabin"
He went on to express a contrary view to that of Mr Strange with respect to pilots and cabin crew making determinations about deferring maintenance.
In summary Mr Hanna expressed the view that:
(a)in placing the defects reported in the logs on hold, Mr Strange, in effect cleared each aircraft for continuing operation with a defect or damage and that Mr Strange was not appropriately endorsed in the radio and instrument categories to make these assessments;
(b)in making these unauthorised assessments Mr Strange carried out maintenance; and
(c)the defects reported on the relevant technical logs had the potential to create a risk to aviation safety, the PA system being crucial in the event of an emergency and the DME by its very nature as a navigational instrument being fundamental to the safe operation and flight of an aircraft.
Consideration
There is no dispute about the facts that on 21 September 2000 CASA suspended the applicant's AME licence until he passed an examination; that this suspension was pursuant to regulation 265 of the Civil Aviation Regulations; that the applicant sat and passed the examination; and that on the 29 September 2000 CASA revoked the suspension of the applicant's AME licence as he had passed the exam. As already indicated above, the applicant submits that the basis on which the suspension of the applicant's AME licence, namely that he carried out maintenance or certified for maintenance, which he was not authorised to do is not correct in that the applicant's actions did not constitute maintenance as defined in the legislation; or in the alternative if the Tribunal determines that the applicant's actions did constitute maintenance, CASA's actions in suspending his licence and requiring him to undergo an examination in the airworthiness administrative of his licence were unreasonable in all the circumstances and in so far as the licence suspension goes contrary to CASA's policy as indicated by the CEO of CASA in his address to the Press Club in 2001. On these grounds it was submitted that the Tribunal should order the removal of the documents relating to the incident.
The applicant's submission raises a significant threshold issue which need to be addressed in the first instance.
The question to be addressed is whether the Tribunal has the power to rescind documents in the applicant's personal CASA file. Sections 49, 50 and 51 of the Act are relevant and the application of these sections was addressed in some detail by Deputy President R K Todd in Re Cox and Department of Defence (AAT 5659, 2 February 1990). Deputy President Todd said:
"(1) …It is a nice question whether the tribunal has power to order removal of a document from a record. I know of no case, and was referred to none, in which the tribunal has understood the power of 'altering the record' (see s 50(1)) to include ordering the removal of a document of documents. The power is to amend the record, not to amend a document. The record may be amended by altering the record or by adding an appropriate notation to the record: s50(1) and
(2) It is to be noted that the whole process is to be commenced by a request under s 48 to 'amend the record … information' where the claim is that 'a document … to which access has been provided to the claimant under this Act contains information relating to his personal affairs – (a) that is incomplete, incorrect, out-of-date or misleading' …"
The Tribunal also addressed the question as to whether "amendment" included "recision" in Re Olsson and Australian Bureau of Statistics (AAT 2635, 18 April 1986). The Tribunal concluded that "recision" was not provided for in the Act and stated:
"The objects of the FOI Act may be adumbrated as the making available to the public of information as to the operations, rules and practices of government agencies and access to their records (subject to exemptions). It would be sufficiently surprising to find therein provisions allowing this Tribunal power to rescind Departmental instruments when specific provision had been made by the Acts Interpretation Act 1901 s.33(3) for the grant of power under an act to issue instruments to carry with it the collateral power to repeal, rescind, revoke, amend or vary them:"
With respect, the Tribunal adopts the approach as outlined above and is satisfied that the applicant's request for removal of documents from his personal file, regardless of whether the information in these documents is "incomplete, incorrect, out of date or misleading", is not an option provided for in the Act.
The Tribunal has therefore proceeded on the basis that the applicant's request is to be considered on the basis of a request for amendment or annotation as provided for in section 48 of the Act.
In making the above finding the Tribunal is mindful that pursuant to section 51(1)(a) of the Act, Mr Strange was invited by the primary decision maker to provide a statement which may be added to his file and attached to the documents which he had sought to be removed (T4-12).
It is convenient if the Tribunal now addresses the applicant's submission that CASA's action in suspending his licence was unreasonable, such action being contrary to CASA policy. In this regard the Tribunal was referred to the comments made by the CASA Director, Mick Toller, in a speech to the National Press Club in February 2001.
The applicant's submission is based on the answers Mr Toller gave to a question about summary cancellation of a licence under Regulation 269. In this matter the issue before the Tribunal revolves around the process of suspension pursuant to Regulation 265 and as such Mr Toller's answers to the question put to him are of little assistance to the Tribunal. The applicant has not been asked to show cause why his licence should be cancelled nor has his licence been cancelled. In this matter Mr Strange's licence was suspended subject to him satisfactorily completing an examination on his understanding of regulatory procedures which he successfully completed, following which the suspension of his licence was immediately lifted. The Tribunal is satisfied that this action fits comfortably within the regulatory framework as outlined by Mr Toller in the introductory remarks he made to the Press Club and is not at odds with Mr Toller's comments that removal of certificates would not occur very often and that he would only condone such action when there is strong evidence of an immediate threat to air safety.
It is the Tribunal's understanding that suspension allows for counselling, retraining and further examination of competence. While the history of suspension is likely to be relevant to consideration of cancellation of a licence, the nature of the regulatory scheme is such that cancellation following suspension will, as Mr Toller indicates, occur infrequently.
While Mr Toller's remark could be taken to point to CASA policy or practice with respect to cancellation of licences, the Tribunal is satisfied for the reasons given above, that his remarks are not directed to the application of section 265 of the Act and as such are of no relevance to the Tribunal's consideration on this matter.
The next question to be addressed is one posed by the respondent, namely whether the Tribunal should deal with Mr Strange's application for review.
The respondent has submitted that the applicant is seeking to review CASA's decision to suspend his AME licence through the FOI Act and that any remedy the applicant may seek with respect of the decision to suspend his licence, should be pursued by an application to this Tribunal for review of that decision. In reply to this submission from the respondent, the applicant has said:
"1. We … point out that the applicant did lodge an application for review of the decision to suspend Mr Strange's licence. Application D2000/29 refers. That application became a nullity due to the licence suspension being revoked by the respondent by letter dated 29th September 2000. The letter revoking the suspension is at page 25 of the T documents. Application D2000/29 was formally dismissed by the Tribunal on 6th March 2001.
2. … The matter under appeal concerns the file records of a decision to suspend the applicant's licence, and of the flow on results of that suspension. Due to the very short time period between the licence suspension and the revoking of the suspension, the applicant was precluded from making an effective appeal against the decision to suspend. We submit that it is necessary to refer the Tribunal to the original decision to suspend Mr Strange's licence in order for it to arrive at a decision on the reasonableness or otherwise of the file records. We submit that this application is not a defacto review of the original decision. If Re Olsson and Australian Bureau of Statistics was to be applied by the Tribunal, any short term suspension of a licence by the respondent would be recorded on the relevant file and that record would not be subject to review by the Tribunal. We submit that this would be inequitable."
The respondent referred this Tribunal to Re Olsson and Australian Bureau of Statistics (supra) where the Tribunal declined to amend a Declaration of Eligibility of Redeployment purportedly made under section 9 of the Commonwealth Employees (Redeployment and Retirement) Act 1979. At paragraph 7, the Tribunal said:
"Light is thrown upon the legislative intention behind the insertion of Part V into the original Parliamentary Bill, but recourse to the Minister's Explanatory Memorandum to the House of Representatives, and to the Senate Committee's Report upon which the former appears to have been based. The Senate Committee's Report at paragraphs 24.16 and 24.17, makes clear that 'correction' of personal files as to personal information of a factual nature was being aimed at, the phrase 'correction of inaccurate or misleading facts' occurring in the recommendation at paragraph 24.18. The Ministerial explanation in turn in its paragraphs 139 and 140 refers to the purpose of Part V as being to allow a person to 'seek correction of documents'. A consideration of these statements in the legislative process and of the Act's terms leads us to the view that the words 'amend' and 'amendment' in Part V are intended to include, in the Shorter OED sense, 'to free from faults, correct, emendate, make alterations'."
And at paragraph 9:
"We have concluded however that it is not open in the circumstances for this Tribunal to consider what is in effect an appeal against the decision taken, put in the guise of an application for amendment of record."
In dealing with this question the Tribunal is mindful that, as Deputy President Todd said in Re Cox and Department of Defence (supra), what is being considered for amendment (or annotation) pursuant to section 48 of the Act is not information but a record of information. Thus:
"Incorrect information can be recorded correctly. The record ought not be amended simply because qua record, the information that it correctly records is incorrect information. … [B]y parity of reasoning, it was not for an agency or the Tribunal to cure what was considered to have been an incorrectly formed opinion."
With respect the Tribunal adopts the approach taken in Re Olsson and the Tribunal does not accept the applicant's submission that to not review the decision to suspend the applicant's licence in this case would be inequitable.
The Tribunal has arrived at this view on the understanding that if the decision to suspend the applicant is to form any part of any further consideration of the applicant's competence (wherein the applicant has to show cause as to why his licence should not be cancelled, with subsequent cancellation of his licence) then it is open to the applicant to seek review of any decision to cancel his licence and any such review no doubt would consider all of the relevant merits of the case, including whether the decision to suspend his licence in September 2000 was the correct or preferable decision.
The applicant's principal contention is that CASA's decision to suspend the applicant's licence is based on him carrying out unauthorised maintenance or certification and that this basis is wrong in that the applicant did not carry out such maintenance or certification as defined in the Act.
For the reasons given above the Tribunal is satisfied that an application made pursuant to section 48 of the FOI Act cannot be treated as an application for review of this decision to suspend the applicant's licence.
However, while it is important that the Tribunal does not rewrite history or amend reasonably held opinions, the Tribunal is mindful that it may be necessary to amend documents so as to eliminate clear indications of insidious rumours or innuendo, unreliable subjective opinions, simple factual misrepresentations or mistakes or irresponsible judgments so as not to prejudice the applicant's prospects for a fair determination of his rights or benefits (see Wiseman v Department of Communications (1984) 12 ALD 707).
After careful consideration of all of the material before it and the submissions made by both parties, the Tribunal is satisfied that the view taken by CASA that the applicant carried out unauthorised maintenance cannot be seen as irresponsible.
Whether the decision to suspend the applicant's licence on this view was the correct or preferable decision is not a matter for determination by the Tribunal in this case. The Tribunal would expect that any review of that decision would take into account any ambiguities or deficiencies in the regulatory framework, the meaning of the definition of maintenance, the responsibilities and authorities vested in pilots viz licensed Aircraft Maintenance Engineers, the evidence of the pilots and cabin services crew of the two aircraft involved, and the level of risk to aircraft safety as a result of the applicant's actions.
Turning now to each of the documents to which amendment is sought
CASA File 088700
(a) Folios 257 and 258 (T10/23 & 24)
T10/23 is a letter of suspension from CASA to Mr Strange. This document correctly records the suspension process. T10/24 (Annex A to T10/23) sets out the requirement for Mr Strange to undertake an examination in relation to his knowledge and understanding of the regulatory requirements and procedures; and the reasons for this decision. The document also sets out the background facts to this decision and in so doing, as indicated in paragraph 32 above, incorrectly places the incident with respect to the DME system on 24 August 2000 whereas it occurred on 1 September 2000. The Tribunal is satisfied that T10/24 should be annotated to correct this simple factual error. With this annotation the Tribunal is satisfied that folios 257 and 258 are not incomplete, incorrect, out of date or misleading.
(b)Folio 259 (T11/25)
This document records that Mr Strange's suspension was revoked when he passed an examination. The Tribunal is satisfied that folio 259 is not incomplete, incorrect, out of date or misleading.
(c)Folios 262-264 (T9/21, 22; T12 /26, 27, 28)
These documents have been provided by Mr Strange (or his solicitor) to CASA and relate to contentions for the applicant. The Tribunal is satisfied that these folios are not incomplete, incorrect, out of date or misleading.
(d)Folio 265 (T13/29)
This document is a facsimile cover sheet from Wayne Arthur to Jim Hannah dated 24 October 2000 and the Tribunal is satisfied that this folio is not incomplete, incorrect, out of date or misleading.
(e)Folio 266 (T14/30)
This document is a file transfer sheet and the Tribunal is satisfied that this folio is not incomplete, incorrect, out of date or misleading.
(f)Folio 273 (T15/31)
This is an email from Andrew Collins to Rick Leeds granting FOI inspection of CASA files to the applicant and/or his solicitor. The Tribunal is satisfied that folio 273 is not incomplete, incorrect, out of date or misleading.
(g)Yellow post-it note on file cover (T16/32).
The Tribunal is satisfied that this document is not incomplete, incorrect, out of date or misleading.
CASA File 99/8655
(h)Folio 25 (T17/33)
This is an email from Rick Leeds to Wayne Richards informing him of Mr Strange's examination results. The Tribunal is satisfied that this folio is not incomplete, incorrect, out of date or misleading.
(i)Folio 26 (T18/34)
This is an email memorandum from Brenda Jarrett to Rick Leeds informing him that Mr Strange's licence had been placed in a safe. The Tribunal is satisfied that this document is not incomplete, incorrect, out of date or misleading.
It follows from the reasons given above that the Tribunal determines that the decision under review is varied so that:
(a)the Tribunal affirms that part of the reviewable decision whereby, with respect to CASA file 088700, the respondent refused to amend folios 258-266 inclusive, folio 273 and yellow post-it note on file cover;
(b)the Tribunal affirms that part of the reviewable decision whereby, with respect to CASA file 99/8655, the respondent refused to amend folios 25 and 26;
(c)that part of the reviewable decision which refused to amend folio 257 of CASA file 088700 is set aside and in substitution therefor the Tribunal determines that folio 257 is to be retained on CASA file 088700 with attached the following annotation:
"This document has been held by the Administrative Appeals Tribunal to contain information that is factually incorrect. The respect in which the information is incorrect is that the document incorrectly refers to the date of an incident affecting the distance measuring equipment of B747 registration number VH-EAA as 24 August 2000 whereas it should be 1 September 2000."
In making the above determinations the Tribunal expects that as a matter of administrative efficiency, a copy of the Tribunal's decision and reasons for a decision as set out above, will be placed on CASA file 088700 and CASA file 99/8655.
Furthermore the Tribunal notes that the invitation to Mr Strange to provide a statement pursuant to section 51(1)(a) of the Act is extant.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: .....................................................................................
AssociateMatter Heard on the Papers
Date of Decision 12 April 2002Solicitor for the Applicant Mr R Lawford, Solicitor
Solicitor for the Respondent Mr A Anastasi, Legal Counsel, CASA