FEDERAL COURT OF AUSTRALIA

Anderson v Civil Aviation Safety Authority [2013] FCA 1367

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs of the appeal as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1.    questionS OF LAW

1    The applicant, John Anderson, contends that three questions of law arise in respect of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of the Civil Aviation Safety Authority (CASA) to cancel Mr Anderson’s commercial pilot (helicopter) licence.

2    The three questions of law are:

1.    Whether the Tribunal was empowered to affirm the decision of CASA made under regulation 269(1)(a) of the Civil Aviation Regulations 1988 and/or whether CASA was empowered to make the decision made under regulation 269(1)(a) of the Civil Aviation Regulations 1988 to cancel the air crew licences held by the appellant in circumstances where the appellant has not been convicted by a Court of a breach of either the Civil Aviation Act 1988 or the Civil Aviation Regulations 1988).

2.    Whether the Tribunal erred in law in that it took into account an irrelevant consideration namely whether or not the appellant had provided untruthful information to the Department of Veterans Affairs as set out in paragraphs [72] – [76] of the reasons for its decision.

3.    Whether the Tribunal erred in law in that it failed to take into account a relevant consideration namely the hardship that the appellant would endure in the event of the cancellation of his licence.

2.    QUESTION 1 (s 20A breach)

3    The Tribunal’s reasons (Anderson and Civil Aviation Safety Authority [2013] AATA 613) record that CASA’s decision arose from a complaint made about a flight piloted by Mr Anderson on 30 March 2007, ferrying a party of scuba divers between the Abrolhos Islands and Geraldton, Western Australia, made in a 40 year old helicopter, a Sikorsky S-62A. The subsequent investigation led to Mr Anderson being charged and various offences having been found proved. However, convictions were not recorded and, instead, Mr Anderson was subjected to good behaviour bonds. What is relevant for current purposes is that, because the offences involved breaches of the Civil Aviation Regulations 1988 (Cth) (the Regulations), it was (and is) common ground that the power in reg 269(1)(a) was available, reg 269(1A)(b) being satisfied. For convenience, the relevant parts of reg 269 are set out below:

(1)    Subject to this regulation, CASA may, by notice in writing served on the holder of an approval, authority, certificate or licence (an authorisation), vary, suspend or cancel the authorisation if CASA is satisfied that one or more of the following grounds exists, namely:

(a)    that the holder of the authorisation has contravened, a provision of the Act or these Regulations, including these regulations as in force by virtue of a law of a State;

(b)    that the holder of the authorisation fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these Regulations in relation to the obtaining or holding of such an authorisation;

(c)    that the holder of the authorisation has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;

(d)    that the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation;

(e)    that the holder of the authorisation has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders.

(1A)    CASA must not cancel an authorisation under subregulation (1) because of a contravention mentioned in paragraph (1)(a) unless:

(a)    the holder of the authorisation has been convicted by a court of an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention; or

(b)    the person was charged before a court with an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention and was found by the court to have committed the offence, but the court did not proceed to convict the person of the offence.

4    It was also common ground that although Mr Anderson had been charged with breaching s 20A of the Civil Aviation Act 1988 (Cth) (the Act), reckless operation of an aircraft, he was acquitted of that charge.

5    The Tribunal’s reasons refer to Mr Anderson having been convicted of a breach of the Act, for example, at [3] and [111]. The Tribunal was in error in this regard. The error is one of fact and, as the balance of the Tribunal’s reasons discloses, was immaterial to its reasoning process. The Tribunal knew that Mr Anderson had been found to have committed the offences involving breaches of the Regulations and acquitted of the charge of breach of the Act, as the Tribunal’s reasons at [14] and [15] show. The case for Mr Anderson, rightly, did not depend on these immaterial factual errors.

6    Mr Anderson’s case is that, in circumstances where he had been acquitted of a breach of s 20A with the consequence that the power in reg 269(1)(a) was not available on that basis – reg 269(1A) not being satisfied – the Tribunal was precluded from considering for itself whether Mr Anderson had contravened s 20A for the purposes of its consideration of the question whether he was a fit and proper person to hold the licence as set out in reg 269(1)(d). If it were otherwise, the submissions went, the constraint in reg 269(1A) would be given no work to do.

7    I do not consider this to be a case of the Tribunal purporting to do indirectly that which it could not do directly. It is apparent that the grounds in reg 269(1)(a) to (e) are not mutually exclusive. They overlap to a significant extent so that, for example, one set of factual circumstances is likely to engage, at least potentially, more than one of the grounds in reg 269(1)(a) to (e). Nothing in the statutory scheme indicates that a person having been acquitted of a breach of the Act or Regulations in criminal proceedings precludes the Tribunal from considering for its own purposes whether it is reasonably satisfied on the material before it that the provision was breached and, if so, its relevance to a conclusion as to the person being a fit and proper person within the meaning of reg 269(1)(d). Contrary to the submissions for Mr Anderson, there is no potential inconsistency of decisions in this regard. Criminal charges must be proved beyond reasonable doubt. Acquittals may result from a wide range of circumstances. In an appropriate case the Tribunal may decide that it is satisfied that the breach occurred and that the breach, amongst other things or of itself, makes the person not fit and proper. The Tribunal so decided in this case.

8    This conclusion does not mean that reg 269(1)(a) and (1A) have no work to do. Those provisions work according to their terms. Regulation 269(1)(a) is not available unless reg 269(1A) is satisfied. But that does not mean that regs 269(1)(b) to (e) are not available if reg 269(1A) is not satisfied. In the present case, accordingly, but for the proven breaches of the Regulations, reg 269(1)(a) would not have been available because of reg 269(1A). In fact, there were breaches of the Regulations proven so reg 269(1)(a) was available. But the point is that there is no warrant for attempting to make reg 269(1A) do more than it says.

9    For these reasons question 1 must be answered “Yes”. The Tribunal was empowered to do what it did. Insofar as reg 269(1)(d) is concerned the fact of the acquittal did not preclude the Tribunal from considering for itself the question of breach of the Act for the purpose of determining whether Mr Anderson was a fit and proper person. Insofar as reg 269(1)(a) is concerned, in this case, Mr Anderson had been found to have breached the Regulations.

3.    QUESTION 2 (IRRELEVANT CONSIDERATION)

10    The Tribunal explained precisely why it considered this matter to be relevant to the decision whether Mr Anderson was a fit and proper person. As the Tribunal explained:

•    “The regulation of aviation in Australia rests heavily on a system of self-reporting by those conferred with the privilege of holding a licence under the Act. The need for candour in such a system is self-evident” (at [115]).

•    The inescapable fact is that Mr Anderson told the Department of Veterans Affairs that he ceased full time employment in December 2005 and was then being paid nothing. In fact, he was working in New Guinea and the company of which he was the sole director was being paid for his work. Mr Anderson, the Tribunal inferred, provided false information to the Department for his personal gain (at [72] to [76]).

•    This finding, accordingly, became relevant to the Tribunal’s assessment of the answer to the “more difficult question…whether there is a sound basis to be confident that in his future dealings with CASA and/or DAMEs [Designated Aviation Medical Examiner], Mr Anderson will disclose all relevant information especially where he perceives that to do so might be contrary to his interests” (at [115]).

11    There is no basis for concluding that the issue of false information to the Department was an irrelevant consideration to the question under reg 269(1)(d). The fact, if it be the fact, that the Department has not complained about the information, is immaterial. The Tribunal was entitled, indeed bound, to decide the matter on the material available to it. That material persuaded the Tribunal that Mr Anderson had provided false information to the Department to advance his own interests. That, along with other conduct of Mr Anderson in not having disclosed his medical conditions, which the Tribunal also found was done to protect his own interests, was directly relevant to the question of Mr Anderson’s fitness to hold a licence.

12    Question 2 thus must be answered “No”.

4.    QUESTION 3 (HARDSHIP)

13    Mr Anderson adduced evidence that he would suffer hardship if his licence were cancelled. It was contended on his behalf that this was a consideration the Tribunal was bound to take into account, not in deciding whether Mr Anderson was a fit and proper person, but in deciding to cancel his licence rather than, for example, varying or suspending his licence.

14    CASA contended that far from being a relevant consideration, hardship to the licence holder was an irrelevant consideration which the Tribunal was precluded from taking into account.

15    I do not accept either position. I do not consider that any aspect of the statutory scheme indicates that hardship to a licence holder is a matter that must or must not be taken into account. What is clear by s 9A of the Act is that “[i]n exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration” and thus so too must the Tribunal. Any deviation from that statutory direction, whether by reference to hardship or otherwise, would be an error of law. Beyond that it is for the Tribunal to decide, having regard to the cases put before it, any matter rationally connected to the questions it has to answer. In the context of deciding whether Mr Anderson was a fit and proper person, consistent with Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 253 ALR 263; [2009] FCA 49 at [42] and [43], I doubt hardship could ever be said to be rationally connected to that question. In the context of deciding whether the licence of a person who has been found not to be a fit and proper person should be cancelled, varied or suspended, I do not consider hardship to be either a relevant or irrelevant consideration. The Tribunal could take that factor into account in framing its decision but, in my view, is not bound to do so. That is sufficient to undermine the case for Mr Anderson in this regard. If not a consideration the Tribunal was bound to consider, then the Tribunal did not err in not considering it.

16    It follows that question 3 must be answered “No”.

5.    CONCLUSIONs

17    For the reasons given the appeal should be dismissed with costs.

Associate:

Dated:    17 December 2013