FEDERAL COURT OF AUSTRALIA

Angel Flight Australia v Civil Aviation Safety Authority [2021] FCA 469

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s further amended originating application dated 19 August 2020 is dismissed.

2.    The applicant is to pay the respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

ANDERSON J:

INTRODUCTION

1    The applicant (Angel Flight), by its further amended originating application filed 19 August 2020, applies to the Court for review of a decision of the respondent, the Civil Aviation Safety Authority (CASA), to make the instrument designated as CASA 09/19 – Civil Aviation (Community Service Flights – Conditions on Flight Crew Licences) Instrument 2019 (Instrument).

2    Angel Flight seeks an order quashing the Instrument together with various orders for declaratory relief.

3    Angel Flight relies upon four grounds of review. Angel Flight abandoned Ground 4, which related to an alleged breach of the rule of natural justice. The grounds that are still pressed may be grouped into two categories as follows:

(a)    Grounds 1, 2 and 3: the Instrument is said to be ultra vires in that it fell beyond the power conferred by regulation 11.068 of the Civil Aviation Safety Regulations 1998 (Cth) (CASR);

(b)    Ground 5: it is said that CASA’s exercise of power under regulation 11.068(1) was unreasonable and/or not reasonably proportionate in relation to:

(i)    the making of the Instrument; and

(ii)    the making of cll 7(c), and/or 9, and/or 10, and/or 11 of the Instrument.

4    For the reasons that follow, Angel Flight has not established these grounds of review. Angel Flight’s application will be dismissed, with costs.

SOME FACTUAL BACKGROUND

5    Before setting out each parties’ evidence, some uncontroversial factual matters should be set out.

6    First, it was not in dispute that, on or around 15 August 2011, an aircraft, with the registration mark VHPOJ, crashed near Horsham in Victoria, fatally injuring all three occupants. The aircraft had been engaged in a Community Service Flight (CSF) organised by Angel Flight.

7    Second, on or around 28 June 2017, an aircraft with the registration mark VH-YTM collided with terrain shortly after take-off from Mount Gambier Airport in South Australia, fatally injuring the three persons on board and destroying the aircraft. The aircraft was engaged in a CSF organised by Angel Flight.

8    Regulation following those events is the subject of this proceeding and it would appear that the parties do not agree about matters relating to the cause of those accidents. However, as I understood it, it is uncontroversial that those accidents occurred.

ANGEL FLIGHT’S EVIDENCE

9    Angel Flight tendered and relied on the following affidavit material:

(a)    the affidavit of Marjorie Pagani sworn 12 March 2019 at [1]-[2], [10]-[29], [33], [35], [52], [59]-[61], [65] and [74]-[79] and annexure “MP-1”;

(b)    the affidavit of Marjorie Pagani sworn 18 March 2019 at [20]-[23];

(c)    the affidavit of Marjorie Pagani sworn 14 February 2020 at [25]-[27], [33] and [36], and annexures “MP-19” to “MP-25” (inclusive);

(d)    the affidavit of Owen Crees sworn 15 June 2020 at [1]-[2], [4], [6] and [8]-[14] and [17] and annexures “OC-1” to “OC-2”;

(e)    the affidavit of Marjorie Pagani sworn 15 June 2020 at [18]-[19], [21]-[23], [35], [42], [47]-[51], [56], [64]-[65], [67]-[69], and annexures “MP-31”, “MP-35”, “MP-45”, “MP-47”-“MP-49” and “MP-51”.

10    These were collectively marked Exhibit A.1 in the course of the hearing and are set out in the Court Book (CB) at 24. This evidence was also subject to a Ruling on the Parties’ Joint Schedule of Objections (Ruling on Evidence) which I made on 11 March 2021 in this proceeding.

Relevant evidence of Marjorie Elizabeth Pagani

11    Ms Pagani is the Chief Executive Officer, Company Secretary and a Director of Angel Flight. Ms Pagani deposed to the following relevant matters.

12    Angel Flight was established in 2003 and is registered as a “large charity” with the Australian Charities and Not-for-profits Commission. Angel Flight coordinates non-emergency flights for transportation to the destinations and back (if need be) of:

(a)    patients of all ages needing medical treatment at destinations where other forms of transport are not available, are physically and emotionally taxing or are unaffordable;

(b)    blood and blood products;

(c)    medical drugs; and

(d)    family members for compassionate reasons.

13    Angel Flight operates in every Australian state and mainland territory, although primarily the requirements are for the service to operate in the southern and eastern states and Western Australia.

14    Since 2003, Angel Flight has coordinated more than 46,000 flights for 11,343 patients, carers and family members. Flights are provided free of charge to the user, including for companions or carers travelling with a patient. Subject to demand and aircraft size, a flight may provide transportation assistance to more than one patient or family. Angel Flight accepts assistance from the owners and pilots of jet aircraft for a combination of flights where there are several families needing to go to a particular city from different towns along the same or similar track. Angel Flight also provides free car transportation between airports and medical facilities and nearby accommodation. This ground transportation is provided by volunteer drivers. Angel Flight currently has 3,300 volunteer pilot registrations and 4,500 volunteer driver registrations.

15    The primary focus of Angel Flight is the transport of disadvantaged rural people, from all over Australia, to major centres for medical treatment where commercial flights are unaffordable or unavailable and where otherwise very long drives on outback roads would be required. Angel Flight regularly provides compassionate flights for terminally ill patients in city hospitals who want to go home to be with their families, to reunite parents and children separated for lengthy periods due to medical treatment or illness, or to transport deceased premature babies or young children back to the family’s home town so that they can be farewelled. Angel Flight pilots do not carry aeromedical staff or medical equipment. The flights are not an alternative to the Royal Flying Doctor Service or any air ambulance service.

16    Angel Flight does not employ pilots or own aircraft or vehicles. Flights are conducted by volunteer pilots who own the aircraft or hire aircraft at their own cost. Angel Flight’s charitable endeavours are entirely dependent upon the willingness of volunteer pilots to offer their time, skills and aircraft.

17    The procedures adopted by Angel Flight in coordinating a flight are as follows:

(a)    a registered health professional contacts Angel Flight with a flight request enquiry;

(b)    Angel Flight assesses whether, in general terms, the request is within its parameters;

(c)    the health professional is then sent relevant documents, including a “Flight Request Form”, “Referrer Guidelines”, “Medical Clearance requirement document”, “Passenger Guidelines” and “Passenger Waivers”;

(d)    the passengers, including all adult accompanying persons, are required to execute the “Passenger Guidelines” and certain waivers and releases of liability, to affirm that they have read and understood the documents;

(e)    the passengers are required to watch a video detailing the types of aircraft likely to be used, manner of entry and exit, luggage requirements and size restrictions;

(f)    a medical certificate must be issued by the treating doctor, advising that the passengers are fit to fly on a light aircraft, and will not require medical assistance. This document is required to be signed and sent to Angel Flight;

(g)    after the above executed documents are received, the flight is posted on “the billboard” for “pilot application”;

(h)    pilots apply for the mission. These applications are assessed against parameters such as distance, speed, comfort, fuel, exit and entry issues, and freight requirements (such as prams, baby capsules etc);

(i)    a pilot is then allocated the mission;

(j)    all communications are with Angel Flight, and not directly between the passenger and the pilot or the driver;

(k)    pilots are encouraged (both orally and in documents, including in the “Pilot Handbook”) to cancel the mission at any time if there is any uncertainty about any matters. No flights are planned for before or after last light. Angel Flight does not accept any flights planned for night flying, and does not permit the use of the “Night [visual flight rules (VFR)]” rating. “Backup plans” depend upon the circumstances of an individual request, but may include arranging a seat on commercial air transport (where available), a short drive to the nearest regular public transport airport, or requesting that the referring health professional reschedule the appointment. In some cases, the passenger may elect to drive;

(l)    no patient is guaranteed a flight or drive. If a mission is allocated, patients are advised that there is no guarantee that the mission will proceed but, if it does not, Angel Flight will take all possible steps to implement a backup plan;

(m)    upon cancellation of a flight, all communications are between Angel Flight, the passenger and the health professional. The pilot is not required to undertake any of these tasks;

(n)    Ms Pagani deposes that there are very few pilots who have not cancelled at least one mission and that this is “accepted and expected”;

(o)    Ms Pagani deposes that passengers and health professionals “frequently cancel flights if plans change for them” and this is “accepted and expected”;

(p)    Ms Pagani deposes that, in the case of compassionate or respite flights, and those involving the transport of deceased children with their parents, the contact with Angel Flight is made through social workers at major hospitals, and the same procedures are followed. In the case of very long distances to transfer terminally ill passengers home or to respite care, jet passenger services are used. Angel Flight tries to avoid light aircraft flight times of more than 2.5 hours, although in the case of the border-country flights, this will be exceeded. Angel Flight tries to utilise jet aircraft volunteers where possible on longer flights or in respect of those with more than five passengers. Many compassionate flights have been, for example, from Sydney to Darwin, Karratha and Broome, and at times Brisbane to Cairns.

18    Ms Pagani deposes that Angel Flight is one of three charities which provides CSFs. The others are “Wings 4 Kidz” and “Little Wings”.

Evidence of Dr Owen Crees

19    Dr Crees has held a private pilot’s licence since 1978. He has been a volunteer with Angel Flight since 2004 and a director of Angel Flight since December 2019. Ms Pagani’s affidavit sworn 18 March 2019 deposes that Dr Crees has a Bachelor of Science (Hons), Master of Science and PhD in Chemistry and is the retired Chief Executive Officer and Director of Research Laboratories Australia Ltd, and retired Director of Green Pool Commodity Analysts, Neopec Pty Ltd, Advanced Imagining Processes South Australia (Switzerland) and Tonejet PLC (UK).

20    Dr Crees prepared an analysis of the accident rates for Angel Flight compared to other private operations using internal Angel Flight data, the reports from the Bureau of Infrastructure and Regional Economics (BITRE) concerning aircraft activity, and the Australian Transport Safety Bureau (ATSB) records of aviation accidents. Dr Crees’s analysis indicates that the fatal accident rate for Angel Flight is not significantly different from that of other general aviation flying. That is, in Dr Crees’ opinion, it is not possible to claim that Angel Flight has a higher rate of fatal accidents than private, business and sports aviation. Dr Crees’s report was annexure “MP24” to the affidavit of Ms Pagani filed on 14 February 2020 in this proceeding.

21    Dr Crees deposes that the “ATSB Aviation Occurrence Statistics Report 2008 – 2017” quotes an average rate of fatal accidents for aeroplanes in private operations of 20.3 per million hours. Dr Crees’s calculations for Angel Flight over almost its entire history from 2005 to 2017 revealed a fatal accident rate of 40 per million hours. Dr Crees deposes that, at this rate, there have been only two fatal accidents associated with Angel Flight and the difference between Angel Flight and the “ATSB Aviation Occurrence Statistics Report 2008 – 2017” data “is not statistically significant”. Dr Crees deposes that it is not possible to claim that Angel Flight has a higher rate of fatal accidents.

22    As I have stated, Dr Crees prepared a report which was annexure “MP-24” to the affidavit of Ms Pagani filed on 14 February 2020 in this proceeding. That report was titled “Analysis of Angel Flight Accident Data”. Dr Crees’s report stated (among other things):

In a document filed by CASA … on 15 March [2019], [it was] claimed that the fatal accident rate for community service flights in the period 2008 – 2017 was five times higher than for private/business/sport aviation. [The document] quoted a fatal accident rate of 112.7 per million hours for community service flights compared to 20.86 per million hours for private/business/sport aviation. It is understood [that the document] relied on BITRE (Bureau of Infrastructure and Regional Economics) data for that period, notwithstanding:

•    BITRE did not collect data on community service flights until 2014;

•    the definition of community service flights used by BITRE is so broad as to include charities such as Angel Flight, Little Wings, Wings4kidz, and Funflight as well as other local charity events;

•    aircraft log books and maintenance releases do not record the purpose for which an aircraft was used on each flight so it is impossible for many operators to identify community service flights for individual aircraft;

•    … an average of only 45 owners responded compared to the average of more than 200 different aircraft used in Angel Flight operations in the period …

…

Angel Flight has been able to analyze [sic] its own data but does not have access to data from the other community service flight providers.

…

Fatal accident rates 2008 – 2016

This is the only period where matching data are available from both Angel Flight and ATSB records and, therefore, the only data suitable for valid comparisons.

…

There was only one fatal Angel Flight accident in this period, giving an estimated rate of fatal accidents of 24.1 per million hours. This is not 112.7 per million hours, as claimed by CASA, nor is it five times the result for private/business/sports aviation. Rather, it is very similar to the rate for private/business/sports aviation and the difference is not statistically significant i.e. it is not possible to claim that Angel Flight has a higher rate of fatal accidents than private/business/sports aviation.

Fatal accident rates 2005 - 2017

The period 2008 – 2016 does not include the Mt. Gambier accident that occurred in 2017. However, Angel Flight has flight data for all but its first two years of operation so it is possible to extend the analysis of its operations to 2005-2017. For this period, the fatal accident rate is 40.2 per million hours but the difference between this result and the ATSB rate for private/business/sports aviation is not statistically significant i.e. it is still not possible to claim that Angel Flight has a higher rate of fatal accidents.

ALL ACCIDENTS

Accident rates (all accidents) 2008 - 2016

It is also possible to compare the rates for all accidents in the two sectors as they are important in comparing the risks involved in Angel Flight operations compared to private/business/sports aviation.

The ATSB report shows that the average rate of all accidents for aeroplanes in the period 2008 – 2016 was 150.9 per million hours.

For the same period, there were three Angel Flight accidents (including one fatal), giving an average rate of rate [sic] 74 per million hours. Although this result is only half the rate for other private operations, the difference is not statistically significant i.e. it is not possible to claim that Angel Flight has a higher or lower accident rate.

Accident rates (all accidents) 2005 - 2017

As above, to make any comparison between Angel Flight and ATSB data beyond 2008 – 2016, one must assume that the accident rate for all general aviation was constant over the extended period.

For the period 2005 – 2017, there were four Angel Flight accidents (including the two fatal accidents) at an average rate of 75 per million hours. Again, this is only half the ATSB 2008- 2016 rate for private/business/sports aviation but, again, the difference is not statistically significant i.e. it is not possible to claim that Angel Flight has a higher or lower accident rate.

(Bold and underlined text in the original.)

Cross-examination of Dr Owen Crees

23    Dr Crees was cross-examined on the first day of trial. The following summarises propositions with which Dr Crees agreed, or accepted, in the course of his cross-examination.

24    In cross-examination, Dr Crees accepted that he was not independent from Angel Flight having been a volunteer since 2004 and a director of Angel Flight since December 2019. Dr Crees accepted that he had advocated on behalf of Angel Flight in opposition to the Instrument.

25    Dr Crees used data from Angel Flight’s database to prepare his report. He did not attach any of that internal data to his affidavit. Dr Crees understood that Mr Monahan (of CASA), in formulating the Instrument, had said that CASA did not have access to the internal data from Angel Flight.

26    Dr Crees accepted that, in carrying out his calculations, he did not have access to data from other CSF operators. His analysis was to carry out calculations based on a particular data set. At least part of that data set was derived from Angel Flight. Dr Crees also had regard to general aviation accident rate data.

27    Dr Crees’s results differ from the results at which CASA arrived. Dr Crees accepted that the results that he arrived at were based on different data from the data used by CASA.

28    In re-examination, Dr Crees was asked whether, in the course of preparing his report, Dr Crees had seen any material that was an analysis of a death said to have been caused on a CSF. Dr Crees said he had seen an ATSB investigation of an accident that occurred near Horsham, Victoria, in 2011.

CASA’S EVIDENCE

29    CASA tendered the affidavits of Christopher Paul Monahan, affirmed 19 March 2020 and 13 November 2020, as amended by the corrections identified in the Respondent’s solicitors’ letter dated 22 February 2021 (see CB 318) and marked collectively Exhibit R.1. These affidavits were also subject to the Ruling on Evidence dated 11 March 2021.

Evidence of Christopher Paul Monahan

Mr Monahan’s role

30    Mr Monahan is the Executive Manager, National Operations and Standards Division (NOS) of CASA. He has been employed in that position since March 2018.

31    Mr Monahan’s duties in his current position at NOS are to manage and lead the division charged with the responsibility for policy development and legislative implementation of all aviation safety standards. The NOS is responsible for oversight of all nationally-administered regulatory services and surveillance, including aircraft certification and production, air navigation services, airspace, aerodromes and remotely-piloted aircraft systems.

CSFs

32    Mr Monahan gave evidence that, prior to the enactment of the Instrument, CSFs had been regulated on the basis that they were private flights, notwithstanding that pilots of CSFs were able to obtain reimbursement from the flight coordinator for the costs of fuel consumed during the flight. Angel Flight is a CSF organisation.

33    Mr Monahan deposed that Angel Flight is one of two “significant CSF organisations” in Australia. The other is Little Wings, a not for profit organisation with headquarters in Sydney. As Mr Monahan understands it, the activities of both Angel Flight and Little Wings focus on the coordination of air and ground transport for sick persons living in rural and regional areas who may not have access to timely and affordable means of travelling to receive medical treatment.

34    Mr Monahan deposed that, as he understands the position, Angel Flight provides a coordination service between patients needing transport and pilots who are prepared to provide that transport. Angel Flight then reimburses the relevant pilots for the cost of fuel consumed on any mission. CSFs are often conducted by pilots holding private pilot licences operating aircraft, which are maintained to private maintenance standards.

The August 2011 accident

35    Mr Monahan understands that, on 15 August 2011, a Piper PA-28-180 Cherokee aircraft, with the registration mark “VHPOJ”, crashed near Horsham in Victoria, fatally injuring all three occupants. Mr Monahan understands the aircraft had been engaged in a CSF organised by Angel Flight, to transport passengers from Essendon to their home in Nhill following medical treatment in Melbourne.

36    Mr Monahan deposes that the ATSB conducted an investigation into the circumstances of the accident involving aircraft VH-POJ. The findings of that investigation were contained in a report dated 3 December 2013 and published under s 25 of the Transport Safety Investigation Act 2003 (Cth) (TSI Act). That report was not tendered in evidence nor was its contents referred to by Mr Monahan in his evidence due to the prohibition from admitting the report into evidence in any civil or criminal proceeding pursuant to s 27(1) of the TSI Act. Section 27(1) provides that “[a] report under section 25 [of the TSI Act] is not admissible in evidence in any civil or criminal proceedings”.

The 2014 Discussion Paper

37    On 18 August 2014, CASA released a public discussion paper entitled “DP13170S – Safety Standards for CSFs Conducted on a Voluntary Basis” (2014 Discussion Paper).

38    The 2014 Discussion Paper sought public opinion on 10 different options for regulating CSFs. CASA released the 2014 Discussion Paper because it had become concerned that CSFs continuing to be regulated as private flights may not be appropriate from a safety perspective.

39    The 2014 Discussion Paper canvassed a range of options with the public including whether it was appropriate for an Air Operator’s Certificate (AOC) to be required for CSFs, or if other mechanisms may be more appropriate for the purpose of accommodating these types of flights, while ensuring that acceptable standards of safety are maintained without imposing unacceptable levels of oversight or “red tape”. Mr Monahan deposes that an AOC is required to be held by operators who conduct (amongst other forms of air operation) commercial, passenger-carrying charter flights.

40    The 2014 Discussion Paper canvassed 10 different options, which ranged between two poles, being “no change to the status quo” through to ensuring “CSF operations [were] under the authority of an AOC”.

41    Mr Monahan’s evidence was that CASA assessed the responses received by CASA to the 2014 Discussion Paper as “unfavourable” to each of the options proposed and not supportive of any change. CASA then determined in February 2015 not to proceed with regulatory intervention at that time.

The 2017 accident

42    Mr Monahan’s evidence was that, as he understands it, on 28 June 2017, a SOCATA TB-10 aircraft with the registration mark “VH-YTM” collided with terrain shortly after take-off from Mount Gambier Airport in South Australia, fatally injuring the three persons on board and destroying the aircraft. Mr Monahan understands that the aircraft was engaged in a CSF organised by Angel Flight to transport a passenger for medical treatment in Adelaide, along with an accompanying family member.

43    Subsequent to the accident involving aircraft VH-YTM, the ATSB conducted an investigation into the circumstances of the accident. The findings of that investigation were recorded in an investigation report which was published on 13 August 2019 (and had the reference number reference number AO-2017-069). That report was not tendered in evidence in this proceeding.

A review by CASA

44    Mr Monahan’s evidence was that, immediately following the accident involving aircraft VH-YTM, in early July 2017, the current Director of Aviation Safety and CEO of CASA, Mr Shane Carmody, commissioned a review of CASA’s oversight of CSF operations (Review). CASA’s Group Executive Manager, Aviation Group, Mr Graeme Crawford, instructed Mr Monahan, as the then Manager of the Flight Standards Branch, to take responsibility for conducting the Review.

45    On 4 July 2017, Mr Monahan tasked Mr Scott Watson, the then Team Leader of the “Fixed and Rotary Wing” within the Flight Standards Branch, with conducting the Review. At the time, it was Mr Monahan’s understanding that the accident and incident statistics, routinely available to CASA through the ATSB, indicated that, at a minimum, the fatal accident rate in CSF operations appeared to be significantly higher than in other private operations.

46    Throughout the course of the Review, numerous meetings were held with participants in the CSF sector, including Angel Flight and Little Wings in relation to the issues the subject of the Review.

The 2017 “Standard Form Recommendation”

47    In or around September 2017, Mr Watson provided Mr Monahan with a “Standard Form Recommendation” (September 2017 SFR). The September 2017 SFR stated (among other things):

The ATSB regularly publishes summaries of Australian aviation accident and incident statistics. In a variety of reports and statistical summaries[,] … the ATSB has found that the fatal accident rate for General Aviation Private / Business flights has approximated 20 fatal accidents per 1,000,000 flight hours. From 2006-2014, all General Aviation types averaged 8-9 fatal accidents per million departures. The report states that aerial agriculture and private/ business flights had the highest and second highest rates followed by survey and photography, aerial mustering and lastly flying training.

Although the number of [Angel Flight] accidents is a statistically small sample and therefore may not be able to form the basis of a statistically valid comparison, it is nonetheless useful to extrapolate and compare the [Angel Flight] accident rate to these statistics.

[Angel Flight] – two fatal accidents in 22000 flights (rounded-up = better) Fatal accident rate per million departures = 90.9

[General Aviation] – total fatal accident rate per million departures 11.3 (worst – 2012)[.]

Regardless of the cause[,] the CSF fatal accident rate is in excess of eight times higher than the ATSB [General Aviation] statistics.

48    Mr Monahan did not consider that the data available at the time of September 2017 SFR was robust enough to form a statistically valid comparison between the CSF sector and the general private aviation sector. Notwithstanding, Mr Monahan considered that the existence of the data referred to in the September 2017 SFR provided a basis for Mr Monahan’s concern that the fatal accident rate in CSF operations was disproportionately high compared to standard private flights and that the higher accident rate may be contributed to by unique features of CSF operations which distinguished them from standard private flights.

49    Mr Monahan instructed Mr Watson to continue to pursue data analysis of operations within the CSF sector to determine what other potential sources of data could be obtained to bring greater clarity to the safety profile of CSF operations as they compared to standard private operations.

The 2018 “Standard Form Recommendation”

50    The Review into the conduct of CSF operations continued as did the discussions with participants in the CSF sector resulting in a standard form recommendation to the Director of Aviation Safety dated 13 December 2018 (December 2018 SFR). The December 2018 SFR recommended that a legislative instrument be made to impose certain operational limitations in the form of conditions on the flight crew licences of pilots who engage in CSFs.

51    The December 2018 SFR identified the “issue” as follows:

Since 2011, there have been two CSF accidents resulting in six fatalities. CASA is also aware of multiple accidents and fatalities involving similar operations in the USA.

Between the 2011 and 2017 accidents, CASA commenced project OS 13/25 to investigate potential safety risks associated with CSF operations and balance these risks with the social needs and benefits of CSF activities, and develop standards. A discussion paper that was published in August 2014 seeking comment on 10 options received significant opposition. Following this feedback, CASA indicated it would not take any immediate action; however, it would monitor the sector and implement actions in the future if necessary.

Following the 2017 accident, CASA engaged with the relevant charitable organisations to encourage the sector to implement voluntary safety enhancements. While some actions have been taken by the sector, CASA considers it is appropriate to establish a regulatory baseline that provides clarity regarding an appropriate minimum safety standard.

52    The December 2018 SFR outlined “the problem” as follows:

… CSF operations have considerable potential complexity for pilots who can have minimal experience levels. CSF flight operations are not supported by an organisational safety system that would be required of either an ASAO or AOC based organisation. Processes to ensure that pilots continue to satisfy the requirements for undertaking CSF operations after they are initially accepted by the charitable organisation, or to require pilots to report incidents to enable continual safety improvement, are not consistently in place across the CSF sector.

The lack of direct safety risk mitigators and the reliance on individual, pilot assessments regarding mission acceptance, commencement or continuance, results in an increased need for Pilots in Command (PIC) to be experienced, operationally recent and well versed in in-flight management, human factors and threat and error management skills. Persons travelling in CSF aircraft are subject to flight operations of increased risk compared to charter or RPT flights.

Following the 2017 CSF accident, CASA encouraged the charitable organisations to implement voluntary safety enhancements. However, meaningful safety improvements have not been realised.

Many of these flights are carried out in challenging operational situations such as VFR in marginal VMC or where there is a requirement for night VFR operations. The lack of maximum duty periods leaves pilots to self-assess their fatigue levels.

There are currently no legislative minimum flight crew licensing, experience or medical requirements for Australian CSF pilots. Australian charitable organisations coordinating CSF do specify minimum requirements for their volunteer pilots however these requirements are generally lower than many of those mandated by similar foreign organisations …

For several decades, the Australian aviation legislative framework has been evolving towards a risk and participant-based structure. Different operations are regulated in different ways depending upon the risks associated with the operation and the type of non-crew persons directly involved in the operation, depending on how informed they are about the safety risks of the operation. Broadly, non-crew can be classified as uninformed participants, informed participants or passengers.

Current charitable organisation practices require the person for whom the CSF is arranged to sign a waiver acknowledging that the CSF is conducted to a lower safety standard than a commercial flight. While the waiver indicates the person is an informed person, it is unlikely they truly understand the safety differences (and the safety data) between, for example, a passenger carrying charter flight and a CSF. These persons can realistically only be considered uninformed participants.

The charitable organisations that coordinate CSF pilots and passengers are not aviation organisations. CASA cannot require these organisations to implement any process or procedural changes. CASA does have an educational and regulatory relationship with CSF pilots, aircraft used to conduct CSF and therefore, indirectly, with CSF passengers.

Although the two Australian CSF accidents are a statistically small sample, the fatal accident rate when compared to General Aviation (GA) is several multiples higher. The CSF fatal accident rate is approximately 90.9 per million departures, with the GA fatal accident rate 11.3 per million departures. It is important to note that in general terms CSF and GA pilots are drawn from the same cohort.

A 2007 research article by the US National Transportation Safety Board examined general aviation accidents in degraded visibility and identified several variables that were significantly associated with accident involvement. These included:

•    The pilot not holding an instrument rating increased the accident risk by nearly five times[;]

•    Commercial pilots had a lower accident rate than private pilots; and

•    Private flights had a higher accident rate than flights conducted for commercial purposes.

(Citations omitted.)

53    The December 2018 SFR conducted a “comparison to similar activities” which stated (among other things):

Broadly, CSF pilots can operate from a variety of unfamiliar locations in varying weather conditions with no organisational oversight or safety support. They are highly reliant on their own personal skills, knowledge and standards. They are transporting passengers with a very limited understanding of the relative risks between CSF and charter operations.

Other operations such as charter (in small aeroplanes with low time pilots), parachuting and adventure flights are conducted under organisational supervision or within a regulated framework. Passengers on these flights are reasonably informed participants when compared to an air transport passenger or a CSF passenger. The required minimum hours are usually exceeded in normal practice …

Noting these differences, it is apparent that to provide a modicum of safety equivalence between CSF and other operations carrying uninformed participants, CSF pilot experience requirements should be increased above those for private pilots conducting a private operation …

54    The December 2018 SFR referred to the following “option analysis”:

Option 7 (flight crew licensing requirements)

Since the DP was issued, CASA has focused on establishing the similarities and difference between other Australian non-certificated operations … Private Pilot Licence (PPL) holders have increased hours requirements (400 hours total flight time in aeroplanes or helicopters and 250 hours flight time as [Pilot in Command] in the same) as well as recent and type specific experience …

The minimum medical standard is Class I or 2, with the Class 2 basic being excluded. This is in line with other safety industries (Rail) within Australia where sudden incapacity or collapse (e.g. from heart attack or blackout) may result in a serious incident affecting the public.

Recency requirements on the specific aircraft type in which the flight is conducted provide assurance that the pilot is competent on the specific type of aircraft in which the flight is conducted. CASA regulations do not specify aircraft specific recent experience requirements, especially where many different types of aircraft can be flown under the privileges of a class rating that cover numerous types. Additionally, the majority of accidents and incidents occur in the approach and landing phases of flight.

Option 8 (aircraft operational limitations)

… CASA's responsibility as a regulator to ensure an adequate level of safety requires that there be clear and unambiguous requirements where certain operations are perceived as increasing the level of risk to an unacceptable level.

The risks of inadvertent entry into [instrument meteorological conditions (IMC)] at night is greater when clouds cannot be detected when there is little or no ambient lighting. The loss of a visual horizon for pilot who do not hold an instrument rating increases the risk of spatial disorientation that can lead to a loss of control in flight.

Therefore, it is recommended that the restrictions recommended by option 8 (passengers limited to 5 … and no night VFR) be implemented and that additional restrictions — that should not impact on the CSF sector but that would clarify matters for the sector — also be put in place (CSF only in aeroplanes, mandatory flight notification for VFR in line with RPT and CHTR, flight notification to identify the flight as CSF).

Option 9 (aircraft certification and maintenance requirements)

Following consideration of the different certification and maintenance requirements applicable to other Australian aviation operations with overall risk similarities (passenger type, operation type etc), it is recommended that CSF operations be required to utilise the same maintenance requirements that CASA has implemented for parachute jump aircraft. These requirements are not onerous but set a minimum baseline standard that is appropriate for the CSF sector at this time.

(Italicised text in the original.)

55    The December 2018 SFR identified the following “options”:

1.     Do nothing.

2.     CASA implement either of the preferred options from DP 13170S (ASAO for the CSF sector or require a full AOC for any organisation conducting CSF operations).

3.     CASA implement conditions on pilot licences encompassing minimum pilot in command experience, CSF operational limitations and CSF aircraft maintenance requirements.

56    The December 2018 SFR made the following recommendation:

It is recommended that Option 3 be implemented as follows:

1.     CASA make a legislative instrument placing the recommended conditions on all pilot licences …

2.     CASA publicly consult on the drafted legislative instrument from mid-Dec 2018 to 31 Jan 2019 (due to the Christmas and New Year period).

3.     Internal and external communications be executed as described in [an] Attachment [to the December 2018 SFR] …

57    The December 2018 SFR concluded as follows:

The main object of the Civil Aviation Act 1988 (the Act) is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with emphasis on preventing aviation accidents and incidents. To accomplish CASA’s function of conducting the safety regulation of civil air operations in Australia’s territory, one of the methods outlined in the Act is for CASA to conduct regular reviews of the system of civil aviation safety to identify safety-related trends and risk factors to improve the system.

Achieving an acceptable level of safety for the CSF sector using existing measures is problematic given the current operating and oversight framework. It is recommended that CASA introduce minimum CSF pilot experience, licensing and medical requirements, require flights at night to be conducted using instrument instead of visual procedures and require slightly enhanced aircraft maintenance requirements in line with other operations within Australia involving similar participants.

The recommended actions are proportionate when compared to other uncertificated operations within Australia and similar foreign requirements.

…

58    The Director of Aviation Safety, Mr Carmody, accepted the recommendations contained in the December 2018 SFR.

The 2018 Discussion Paper

59    On or about 18 December 2018, a discussion paper entitled “Summary of Proposed Change: Proposed Safety Standard — Community Service Flights” (2018 Discussion Paper) was published.

60    On 19 December 2018, the 2018 Discussion Paper and an exposure draft of the proposed legislative instrument (proposed legislative instrument) were published on CASA’s “Consultation Hub” to allow access to members of the public.

61    The 2018 Discussion Paper stated:

CASA is proposing to introduce a new minimum safety standard for community service flights (CSFs). The new standard relates to:

•    licensing and medical requirements for pilots

•    minimum CSF pilot experience

•    a requirement that flights at night be conducted under the instrument flight rules (IFR)

•    maintenance-related enhancements consistent with requirements governing similar operations in Australia.

CSFs are non-emergency flights coordinated by registered charitable organisations and conducted for the purpose of transporting people to receive specialist medical treatment. These organisations are not air service providers. CSFs are conducted by volunteer pilots who are solely responsible for the safe conduct of these flights. CSFs can be conducted by day or night, in varying weather conditions, from and to familiar or unfamiliar aerodromes carrying passengers with a variety of medical conditions and needs. CSFs can pose potentially significant challenges for pilots who may have limited flight experience. These flights can be carried out in difficult operational situations including marginal visual meteorological conditions (VMC) and night VFR operations.

CSFs are not conducted under the safety umbrella of an Air Operator’s Certificate (AOC) or necessarily under what may come to be an Approved Self-administering Aviation Organisation (ASAO) … There are currently no legislated minimum qualifications or experience requirements for Australian CSF pilots other than the standard requirements that apply to the Private Pilot Licence (PPL).

Australian organisations coordinating CSF specify minimum requirements for their volunteer pilots. These requirements differ substantially between organisations and are generally less demanding than those mandated by similar foreign organisations.

62    The 2018 Discussion Paper continued:

Operations conducted under an AOC are supported by a comprehensive organisational safety system or a formal safety management system (SMS). Operations in the CSF sector are not required to have any equivalent processes, procedures or risk defences. CASA currently does not have assurance that the CSF sector has consistent processes in place to ensure that pilots who satisfy initial entry requirements into the organisation continue to satisfy the requirements for undertaking CSF operations. After a pilot is initially deemed acceptable by the organisation, he or she does not need to comply with any requirement to report incidents to the coordinating organisation, which would assist that organisation in assessing a pilot’s competence and skill, or in making safety improvements in their organisation’s arrangements.

This lack of safety risk mitigators and the reliance on individual pilot assessments regarding mission acceptance, commencement or continuance, results in an increased need for pilots in command to have appropriate and recent flight time experience, and to be well versed in in-flight management, human factors and threat-and-error management skills …

63    The 2018 Discussion Paper then set out the requirement which CASA proposed to impose on the CSF sector.

Revisiting the data

64    As to the data concerning “incident and accident rates”, Mr Monahan deposes that he instructed CASA’s Flight Standards Branch to re-visit the safety accident and incident data available to CASA to determine whether statistically meaningful trends could be derived from that data as it related to the comparison of incident and accident rates between CSFs and standard private flights. That safety analysis was conducted by CASA in collaboration with experienced statisticians in the “Strategic Analysis Section” of CASA’s “Coordination and Safety Systems Branch”.

65    The data available for that analysis included data concerning the number of flight hours conducted in certain kinds of operations (including CSFs from 2014) on an annual basis provided by BITRE, incident and accident data available to CASA, as well as incident and accident data made available to CASA by the ATSB.

66    Mr Monahan anticipated that the ATSB, as part of its report into the June 2017 Mount Gambier accident, would release an extensive data analysis of the incident and accident rates attributable to CSF operations when compared to other forms of private and commercial operations. Prior to releasing its draft report for comment, the ATSB provided “raw data” held by it in relation to incidents and accidents involving CSFs coordinated by Angel Flight as an attachment to an email dated 6 February 2019 addressed to both Mr Monahan and Ms Pagani, the CEO of Angel Flight. That attachment stated (among other things):

By comparing accident rates and fatal accident rates for CSF with Private/Business/Sports (excluding gliding) over the past 10 years (2008 to 2017), [the] CSF accident rate is 1.5 times higher than that for Private/Business/Sports, excluding the gliding accident rate. However, CSF’s fatal accident rate is 5.4 times tha[n] for Private/Business/Sports (excluding gliding).

Assuming that all accidents from CSF have been accounted for over the past 10 years, the accuracy of the estimated accident rate is very much dependent on the accuracy of CSF’s activity (i.e. flight hours). If CSF's activity has been accurately reported, the small difference in the accident rates between CSF and Private/Business/Sports (excluding gliding) is statistically insignificant. However, since CSF’s fatal accident rates are 5 times that for Private/Business/Sports (excluding gliding), this appears to be statistically significant.

A further review of the two fatal accidents in 2011 and 2017 suggests that both pilots were under VFR, but the weather/visibility conditions may have required IFR (2011’s accident occurred at night, while in 2017 it was the result of reduced visibility with fog, as pointed out by the ATSB’s investigation which is still ongoing).

Another general observation based on the comparative nature of CSF and Private/Business/Sports (excluding gliding) activities is that a pilot undertaking a private flight is not subject to client pressure, while a CSF pilot who has a single-minded focus to complete the mission and get the client to the destination. This suggests that, when the weather is unfavourable, a private pilot is highly likely to cancel or delay the flight, while a CSF pilot may not be able to (or less willing to) cancel the flight (mission-itis or get-there-it is).

67    I will refer to this in these reasons as the “Raw Data”.

68    Mr Monahan’s evidence was that the Raw Data provided by the ATSB was taken into account by CASA in finalising the incident and accident rate data, which was made available to the Director of Aviation Safety, Mr Carmody, for his consideration prior to the issue of the Instrument.

CASA’s assessment

69    Mr Monahan’s evidence was that CASA’s data analysis examined three key statistical figures by way of comparison. First, the “fatal accident rate”, which is a measure of accidents occurring in a particular sector of the aviation industry, in which one or more fatalities have occurred within the timeframe under consideration. Second, the “accident rate”, which is a measure of all accidents, whether involving fatalities or not, occurring in a particular sector of the aviation industry, within the timeframe under consideration. Third, the “incident rate”, which is a measure of all incidents, occurring in a particular sector of the aviation industry, within the timeframe under consideration.

70    The difference between an accident and an incident is that an incident does not involve or result in damage to the aircraft or to property on the ground.

71    Mr Monahan’s evidence was that the CASA data analysis showed that each of the fatal accident rate, the accident rate and the incident rate were higher in the CSF sector when compared to standard private flights. CASA’s analysis indicated that the fatal accident rate in the CSF sector was 5.4 times higher than in standard private flights; the accident rate in the CSF sector was 1.5 times higher than in standard private flights; and the incident rate in the CSF sector was 4.5 times higher than in standard private flights.

72    Mr Monahan’s evidence was that aviation is an inherently safe activity, in which incident and accident rates are low. In that context, the comparison of the fatal accident, accident and incident rates between CSFs and standard private flights, on CASA’s analysis, showed that, in each case, CSF activities were significantly less safe than standard private flights. Mr Monahan considered that comparison to be of significance because, in Mr Monahan’s view, the operational environment between CSFs and standard private flights should be substantially similar if not identical. In light of the low incident and accident rates associated with aviation as a whole, Mr Monahan considered that the significant increase in those comparative rates tended to support a conclusion that the operational environment that confronted pilots conducting CSFs was more challenging and involved higher levels of risk when compared with standard private flights.

73    The CASA data analysis had some significance to Mr Monahan. In Mr Monahan’s view, it provided data to support a conclusion that the CSF operational environment, when compared to standard private flights, involved higher levels of operational risk, which were more likely to contribute to an incident, accident or fatal accident.

74    Mr Monahan asked the “Branch Manager Flight Standards”, Mr Roger Crosthwaite, and his team at CASA to conduct a comparative review of the CSF operational environment in contrast to the standard operating environment to assess what, if any, differences existed. The Flight Standards Branch (of which Mr Monahan is the Executive Manager) comprises staff with a substantial and diverse range of aviation experience as pilots in all forms of private, commercial and military flying operations, as well as qualifications and experience in aviation safety investigations.

75    The review conducted by the Flight Standards Branch concluded that the CSF operational environment involved a set of “human factor challenges”, which are not normally present in the standard private operational environment. “Human factors” refer to a range of variables that impact on human performance and decision making. These included, for example, fatigue, stress and mental workload. Mr Monahan deposed that human factors are significant in aviation because they have a significant potential to impact on the safe performance of flying activities by pilots, particularly the quality of decision making.

76    Having considered the work undertaken by the Flight Standards Branch, Mr Monahan’s understanding was that the key human factors which were more likely to be present in a CSF than in any standard flight included five matters.

77    First, Mr Monahan assessed that there was self-induced pressure as a result of the pilot having taken on the responsibility of delivering an unknown patient for important medical treatment at an appointed time, often with the expectation of a same day return. Mr Monahan deposed that self-induced pressure to complete “the mission” may contribute to pilots making poor decisions or stretching themselves beyond their level of ability or training.

78    Second, Mr Monahan considered that there was significant potential for pressure to be applied on pilots, directly or indirectly, by passengers expecting to be delivered on time for important medical care. Mr Monahan deposed that the pressure of client expectations is well understood in commercial charter flying.

79    Third, although CSF passengers were not paying the pilot directly as per the case of a charter operation, Mr Monahan assessed that passengers nonetheless had a pressing need for the flight to be competed as intended, since the alternative might mean having to delay important health care or treatment.

80    Fourth, Mr Monahan deposed that guidance material produced by the Aircraft Owners and Pilots Association in the United States has noted the potential for that kind of pressure (referred to in the publication as the “mission imperative”) to be exerted in charitable or public interest flights which are substantially similar in nature and intent to CSFs.

81    Fifth, Mr Monahan deposed that, since pilots have no control over the locations from which patients were to be collected and the destinations to which they were required to be delivered, pilots were more likely to find themselves having to operate in unfamiliar locations or in unfamiliar, complex air space in order to deliver a patient. Mr Monahan deposed that such matters are not an aspect of standard private flying, where pilots can choose their own departure and arrival points and operate in conditions where they feel comfortable.

82    Mr Monahan’s evidence was that each of the above human factors is more frequently associated with the operational environment encountered by commercial pilots undertaking passenger carrying, commercial charter, operations, rather than standard private flights. Unlike in the context of a standard private flight, commercial charter flights are regulated to impose higher levels of practical and theoretical training, greater hours of aeronautical experience and have access to additional organisational safety supports.

83    Mr Monahan’s evidence was that the review and analysis undertaken by CASA gave him an understanding that the CSF operational environment was more challenging than the operational environment encountered during a standard private flight. As a consequence, Mr Monahan determined that the safety associated with CSFs would need to be set at a higher level than that which applied to standard private flights.

84    Based on CASA’s assessment, Mr Monahan recommended to the Director of Aviation Safety, Mr Carmody, that he sign the Instrument into effect which would introduce safety improvements to the CSF sector.

85    After a period of public consultation concerning the proposed legislative Instrument and taking into account some proposed changes to the Instrument, on 12 February 2019, the Director of Aviation Safety, Mr Carmody, made the Instrument under regulation 11.068 of the CASR.

Cross-examination of Mr Monahan

86    Mr Monahan was cross-examined on the first day of the trial of this proceeding. The following is a summary of the cross-examination of Mr Monahan.

87    Mr Monahan was referred to a document titled:

Standard Form Recommendation (SFR) – FSB …

Accident or incident investigations (ATSB / NTSB or similar)

ATSB Transport Safety Report AO-2011-100 —3 December 2013[.]

88    Mr Monahan agreed that that document was a standard form of recommendation within CASA. It was part of the September 2017 SFR (referred to earlier in this judgment).

89    That document stated (among other things):

What happened:

On 15 August 2011, the pilot of a Piper PA-28-180 Cherokee aircraft, registered VH-P0J, was conducting a private flight transporting two passengers from Essendon to Nhill, Victoria under the visual flight rules (VFR). The flight was arranged by the charity Angel Flight to return the passengers to their home location after medical treatment in Melbourne. Global Positioning System data recovered from the aircraft indicated that when about 52 km from Nhill, the aircraft conducted a series of manoeuvres followed by a descending right turn. The aircraft subsequently impacted the ground at 1820 Eastern Standard Time, fatally injuring the pilot and one of the passengers. The second passenger later died in hospital as a result of complications from injuries sustained in the accident.

What the ATSB found:

The ATSB found that the pilot landed at Bendigo and accessed a weather forecast before continuing towards Nhill. After recommencing the flight, the pilot probably encountered reduced visibility conditions approaching Nhill due to low cloud, rain and diminishing daylight, leading to disorientation; loss of control and impact with terrain. One of the passengers was probably not wearing a seatbelt at the time of the accident.

The ATSB also established that flights are permitted under the visual flight rules at night (night VFR) in conditions where there are no external visual cues for pilots. In addition, pilots conducting such operations are not required to maintain or periodically demonstrate their ability to maintain aircraft control with reference solely to flight instruments.

90    Mr Monahan agreed that this text constituted the only place in the evidence concerning information and conclusions about this fatal accident as to implications for the safe operations of certain kinds of flights. Mr Monahan agreed that it was the ATSB that conducted investigations into the August 2011 fatal accident referred to in this document. Mr Monahan agreed that, as to the August 2011 accident, this was the material which Mr Monahan and his colleagues had regard to in forming a recommendation that was ultimately produced in the Instrument.

91    Mr Monahan accepted that the conditions imposed by the Instrument found no reflection in the two paragraphs of the ATSB report which stated what the ATSB found in respect to the 15 August 2011 accident. Mr Monahan accepted that there was no “root cause analysis” undertaken by CASA into the two relevant fatal accidents (one in 2011 and one in 2017) which led to any of the recommendations contained in the Instrument. Mr Monahan accepted that there was no “root cause analysis” leading to any recommended content of the Instrument because there was no such “root cause analysis” consideration by Mr Monahan or his colleagues.

92    Mr Monahan said that the relevant two fatal accidents provided the stimulus for further inquiries by CASA concerning CSFs but the two accidents were not the reason for making the Instrument. The two accidents precipitated the discussion, but they were not the reason that the Instrument was eventually made. The two accidents drew CASA’s attention to CSFs.

93    Mr Monahan accepted that those persons at CASA who had looked at the 15 August 2011 accident before Mr Monahan commenced at CASA did not consider that the 15 August 2011 accident provided justification for any particular condition to be imposed on CSFs. Mr Monahan also accepted that a second fatal accident in 2017 did not provide any root causes to justify any particular condition to be imposed on CSFs. Mr Monahan said that the conditions under which CSFs are conducted are different from a normal private flight. Mr Monahan accepted that there was nothing concerning the circumstances of either of the fatal accidents that informed to any degree the making of the Instrument. For example, there was nothing as to the root cause, as to the training or experience of the pilots, as to the conduct of passengers, or as to the particulars routes or mission.

94    Mr Monahan said that there were conditions peculiar to CSFs as opposed to ordinary private flights. However, Mr Monahan accepted that, in respect of the two fatal accidents, he had no information as to whether any generalised differences between CSFs and ordinary private flights were in operation in the two fatal accidents.

95    Mr Monahan said that CASA had incident and accident data from BITRE and ATSB regarding the two fatal accidents. Mr Monahan accepted that statistical analysis was a means by which information about the two fatal accidents could be used to test CASA’s hypothesis about CSFs compared to ordinary private flights.

96    Mr Monahan accepted that he knew nothing about any of the accidents or incidents so as to attribute their occurrence to anything which is peculiar to CSFs. Mr Monahan accepted that there was nothing in the facts or “root cause analysis” of the second fatal accident which, on their own, justified the imposition of the conditions on CSFs. Mr Monahan accepted that he did not, in his affidavits, raise any disagreement with the data analysis set out in Mr Crees’s affidavit.

97    Mr Monahan accepted that the comparator CASA used to compare CSFs was “other ordinary private flights”. However, CASA excluded from that comparator group “gliders”, “crop dusting” flights, “balloons” and “gyrocopters”. Mr Monahan said that such flights were excluded because they were not “similar type operations”. Mr Monahan said, for example, that gliders were excluded from the comparator group because gliders do not have an engine and they do not have a “passenger carrying charter-like operation”. Mr Monahan said that CASA, in conducting its analysis, tried not to exclude from the comparator group those operations which were similar to CSFs. Mr Monahan accepted that his affidavits in this proceeding did not include any justification for how the comparator group was formulated, and, in particular, why it included (what were referred to in cross-examination as) “country aerodrome joy flights”. Mr Monahan also agreed that his evidence did not set out an analysis of any relation between accidents and numbers of passengers.

98    Mr Monahan said that there was a difference between CSFs and private flights. The difference in CSFs is that the people present may be under medical stress, and that the mere presence of that type of passenger creates a different condition in the CSF aircraft that warranted attention.

99    Mr Monahan accepted that he did not have data concerning the passenger numbers carried by CSFs. Mr Monahan accepted that the desirable support of empirical justification, for the imposition of conditions concerning the number of passengers on CSFs, positively required him to obtain such data or to accept that he had no empirical support for such a condition.

100    Mr Monahan accepted that he did not have data differentiating between CSFs and ordinary private flights in respect to the requirement concerning the completion of a minimum amount of flight time. The data he had was provided by BITRE and studies reviewed of other comparative nations.

101    Mr Monahan said there were two reasons for imposing more requirements with respect to CSFs concerning recordkeeping. First, there was a lack of data on these matters, and a recordkeeping requirement enabled an understanding of, for example, how many people have flown, where they have flown, and how many passengers were being carried. Second, Mr Monahan stated that CSF conduct, operationally, was a different type of flight that has a higher accident rate (as assessed by CASA) that warrants attention and, by having more data, CASA can assess if it can understand CSFs more effectively with more data going forward.

102    Mr Monahan believed that CASA had sufficient information about the “general pool” of private flights based on “the BITRE data” and other data which gave CASA a baseline, but CASA did not know much about CSF operations. That was the justification for the imposition of the recordkeeping condition. CASA wanted to find out more specifically about the smaller group, which was CSFs.

103    Mr Monahan was referred to cl 11 of the Instrument, which is titled “Aeroplane maintenance requirements”. Mr Monahan said that maintenance of aircraft was a matter obviously germane to safety regardless of the type of flight being undertaken. Mr Monahan accepted that there was nothing special about CSFs which imposed differential stresses or strains justifying differential maintenance requirements. There was no data collected or analysed during consideration of the making of the Instrument that suggested that there was anything about CSFs that informed a particular need for aeroplane maintenance requirements such as is found in cl 11 of the Instrument.

104    Mr Monahan said that the maintenance requirements in the Instrument apply to CSFs for the additional risk attributed to those flights. Mr Monahan said that the risk exposure is how often someone is exposed to a risk of a maintenance-related incident. Mr Monahan accepted that there was no body of data, upon which there was performed any analysis or consideration in producing the Instrument, concerning aircraft maintenance and the two fatal accidents.

105    Mr Monahan accepted that CASA looked to the approach of foreign jurisdictions as a cue to consider what the position in Australia might justify. That was one of the elements in CASA’s consideration.

106    Mr Monahan said that he believed that, as a consequence of s 27(1) of the TSI Act, there were restrictions on his ability to discuss the work which the ATSB conducts in relation to investigations on behalf of the Commonwealth government. This, Mr Monahan said, was part of an information sharing agreement which CASA has with ATSB. Mr Monahan said that, because of this prohibition, he could not discuss the nature of the comments the ATSB made in their reports into the fatal accidents.

107    Mr Monahan said that the ATSB report provided information to CASA concerning the two fatal accidents. CASA does not itself do investigations like the ATSB. Mr Monahan said that the two fatal accidents were unusual and, even before the ATSB report came out in full, had drawn CASA’s attention because, in Mr Monahan’s words, it is “unusual to have two fatal accidents occur in one sector, or even one subsector, and that was … the start of the process that [CASA] used to gather data as much as [it could], [to] try to analyse that data, [and to] identify … risks that might be unique to … those circumstances”.

PARTIES’ SUBMISSIONS

108    Angel Flight relied upon its written submissions dated 6 July 2020, 23 December 2020 and 25 February 2021. At the hearing, Mr Bret Walker SC appeared with Mr Phillip Boncardo of counsel.

109    CASA relied upon its written submissions dated 5 February 2021. At the hearing, Mr Peter Hanks QC and Dr Laura Hilly of counsel appeared on behalf of CASA.

LEGISLATIVE FRAMEWORK

110    The legislative framework which provides the relevant powers and functions of CASA was not in dispute between the parties. The parties’ submissions conveniently summarised the relevant legislative framework as follows.

CASA’s general powers and functions

111    CASA was established by s 8 of the Civil Aviation Act 1988 (Cth) (CA Act). The main object of the CA Act is to “establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents”: CA Act, s 3A.

112    CASA’s functions are prescribed by s 9 of the CA Act. CASA has the function of “conducting the safety regulation of”, among other things, “civil air operations in Australian territory” (CA Act, s 9(1)(a)), by means that include:

(a)    “developing and promulgating appropriate, clear and concise aviation safety standards”: CA Act, s 9(1)(c); and

(b)    “conducting regular reviews of the system of civil aviation safety in order to monitor the safety performance of the aviation industry, to identify safety-related trends and risk factors and to promote the development and improvement of the system”: CA Act, s 9(1)(g).

113    In “exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration”: CA Act, s 9A(1). In the performance of its functions and the exercise of its powers, CASA “must, where appropriate, consult with”, among others, “relevant bodies and organisations”: CA Act, s 16.

CASA’s power to make the Instrument

Part VIII of the CA Act

114    Section 98 of the CA Act is in Part VIII of the CA Act. It empowers the Governor-General to make regulations not inconsistent with the CA Act, including regulations:

(a)    “prescribing matters required or permitted by the CA Act to be prescribed”: CA Act, s 98(1)(a); and

(b)    “prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to the CA Act”: CA Act, s 98(1)(b).

115    Section 98(5A) of the CA Act provides:

The regulations may empower CASA to issue instruments in relation to the following:

(a)     matters affecting the safe navigation and operation, or the maintenance, of aircraft;

 (b)     the airworthiness of, or design standards for, aircraft.

An instrument must not prescribe a penalty.

116    Section 98(5AA) of the CA Act provides that an instrument issued under s 98(5A)(a):

… is a legislative instrument if the instrument is expressed to apply in relation to:

(a)     a class of persons; or

(b)     a class of aircraft; or

(c)    a class of aeronautical product.

117    Section 98(5AB) provides that an instrument issued under s 98(5A)(a):

… is not a legislative instrument if the instrument is expressed to apply in relation to:

(a)     a particular person; or

(b)     a particular aircraft; or

(c)     a particular aeronautical product.

Part 11 of the CASR

118    The Governor-General has made the CASR. Part 11 of the CASR “sets out administrative provisions for the regulation of civil aviation”: CASR, reg 11.005. Subpart 11.BA contains rules about granting authorisations, including the duration of, and the imposition of conditions on, authorisations.

119    Regulation 11.068, which appears in Subpart 11.BA, provides:

(1)     For subsection 98(5A) of the [CA Act], CASA may issue a legislative instrument that imposes a condition relating to a matter mentioned in that subsection on a specified class of authorisations.

(2)     The class of authorisations may include authorisations granted before the imposition of the condition.

(3)     A condition imposed by a legislative instrument issued under subregulation (1) is taken to be a condition of every authorisation of the class mentioned in the instrument.

(4)     A condition imposed by a legislative instrument issued under subregulation (1) takes effect:

(a)     for an authorisation that takes effect before the day on which the instrument comes into force:

    (i)     when the instrument comes into force; or

(ii)     if a later time is stated in the instrument – at that time; and

(b)     for an authorisation granted on or after the day on which the instrument comes into force:

(i)     when the authorisation comes into effect; or

(ii)     if a later time is stated in the instrument – at that time.

120    Regulation 11.077(1) provides that a person commits an offence if a “person holds an authorisation subject to a condition imposed under regulation … 11.068 … and the person contravenes the condition”. The offence is one of strict liability and has a maximum penalty of 50 penalty units: CASR, regulation 11.077(2).

121    “Authorisation” is defined by regulation 11.015 for the purposes of Part 11 of the CASR to mean a “civil aviation authorisation” other than “an AOC”, “a delegation”, “the appointment of an authorised person”, “an authorisation issued by ASAO” (being an approved self-administering aviation organisation under Part 149 of CASR) and certain approvals and qualifications. A note to regulation 11.015 provides that the definition of “civil aviation authorisation” is that specified in s 3 of the CA Act.

122    “Civil aviation authorisation” is defined as follows under s 3 of the CA Act:

civil aviation authorisation means an authorisation under [the CA Act] or the regulations to undertake a particular activity (whether the authorisation is called an AOC, permission, authority, licence, certificate, rating or endorsement or is known by some other name).

123    Neither the CA Act nor the CASR defines “class of authorisations” for the purpose of regulation 11.068 of the CASR.

124    “Aircraft” are defined by s 3 of the CA Act to mean “any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface”. “Aeronautical product” is defined by s 3 of the CA Act to mean “any part or material that is, or is intended by its manufacturer to be, a part of or used in an aircraft, unless excluded by the regulations”.

Part III of the CA Act

125    Part III of the CA Act deals with the regulation of civil aviation. Division 3D of Part III is titled “Demerit points scheme”. Section 30DT provides that “regulations may prescribe … offences to which [Division 3D] applies … and the number of points that are incurred in relation to an offence”. Section 30DU of the CA Act states that the “regulations must prescribe classes to which civil aviation authorisations belong, having regard to the activities covered by the civil aviation authorisations”. Section 30DW provides that, in certain circumstances, the “holder of a civil aviation authorisation” will incur “demerit points for a prescribed offence” (being “an offence prescribed under section 30DT”). Section 30DX(1) provides that, if “the holder of a civil aviation authorisation incurs demerit points, the demerit points are incurred in relation to the class of authorisations to which the offence relates”. Incurring demerit points may result in the suspension of a civil aviation authorisation or its cancellation: see CA Act, ss 30DY-30ED.

Part 13 of the CASR

126    Part 13 of the CASR is titled “Enforcement procedures”. Regulation 13.370(1) provides that all offences under the Civil Aviation Regulations 1988 (Cth) and the CASR that are specified as “strict liability offences” are offences to which the demerit points scheme in Division 3D of Part III of the CA Act applies. Regulation 13.370(2) provides the number of demerit points that are incurred in relation to relevant offences. The number of demerit points depends on the maximum number of penalty units applicable to an offence. Relevantly for present purposes, regulation 13.370(2)(b) provides that, if the maximum penalty for an offence is 26 penalty units or more, 3 demerit points will be incurred.

127    Clause 13.375 of the CASR is entitled “Classes of civil aviation authorisations”. It provides:

For the purposes of section 30DU of the [CA Act], a civil aviation authorisation mentioned in column 2 of an item in table 13.375 belongs to the class of civil aviation authorisation mentioned in column 3 of the item.

128    The CASR then sets out the following table, which is titled “Table 13.375”:

Table 13.375    Classes of civil aviation authorisations

129    As will be apparent, “particular civil aviation authorisations” are set out in column 2 of table 13.375. These include specified kinds of certificates and authorisations (such as an air operator certificates issued by CASA under s 27 of the CA Act, or certificates or authorisations issued under Part 173 of the CASR). Certain “classes of civil aviation authorisation” are then set out in column 3 of table 13.375.

THE INSTRUMENT

130    As indicated above, on 12 February 2019, Mr Shane Carmody, Director of Aviation Safety, acting on behalf of CASA, purportedly made the Instrument pursuant to regulation 11.068 of the CASR. The Instrument was amended shortly thereafter by “CASA 13/19 – Civil Aviation (Community Service Flights – Conditions on Flight Crew Licences) Amendment Instrument 2019” (Amending Instrument), which was registered on 8 April 2019 and commenced on 9 April 2019. The parties’ submissions indicated that the amendments made to the Instrument are immaterial to these proceedings.

131    The Instrument commenced on 19 March 2019: Instrument, cl 2(a). The Instrument was subject to the tabling and disallowance process in Chapter 3, Part 2 of the Legislation Act 2003 (Cth) (Legislation Act): see ss 8(2), 38 and 42 of the Legislation Act. The Instrument has also been published on the Federal Register of Legislation in accordance with Chapter 2, Part 1 of the Legislation Act.

132    The Explanatory Statement (at page 1) for the Instrument notes that CASA:

… has assessed that community service flight operations have a higher risk of an accident or incident due to the existence of risk factors that are not usually present in baseline private operations. The purpose of the instrument is to mitigate this risk by placing conditions on flight crew licence holders conducting such operations that relate to requirements on the pilot (licence requirements, aeronautical experience, recency and medical fitness), operational and notification requirements and aircraft maintenance requirements.

133    The provisions of the Instrument which are relevant to the present proceeding are:

(a)    Clause 4 provides that the Instrument “applies in relation to a flight in an aircraft conducted as a private operation”.

(b)    Clause 5 provides that, “[f]or the purposes of regulation 11.068 of CASR”, the Instrument “imposes conditions on flight crew licences”.

(c)    Clause 6(1) provides that a flight is a “community service flight” if it meets the description in cll 6(2)-(5) of the Instrument. Clauses 6(2)-(5) provide:

(2)     The flight involves:

(a) the transport of one or more individuals (a patient) to a destination for the purpose of each such individual receiving non-emergency medical treatment or services at the destination; or

(b) the transport of a patient from a destination mentioned in paragraph (a) (the treatment destination) to another treatment destination; or

(c) the transport of a patient from a treatment destination:

(i) back to a place from which the patient departed for a treatment destination; or

(ii) to a destination at which the patient resides.

(3)     The flight is provided to a patient, and any person who accompanies the patient to provide support and assistance, without a charge being made to any of those persons for their carriage.

(4)     Medical treatment is not provided on board the aircraft for the flight, other than the administering of medication or in response to an unexpected medical emergency.

(5)     The flight is coordinated, arranged or facilitated by an entity for a charitable purpose or community service purpose.

Note Section 2B of the Acts Interpretation Act 1901 defines charitable purpose as having the meaning given by Part 3 of the Charities Act 2013.

(Bold and italicised text in the original.)

(d)    Clause 7(1)(c) imposes a condition on a flight crew licence by way of a limitation on the number of persons to be carried on a community service flight. It provides that:

[i]t is a condition on a flight crew licence that its holder must not operate an aircraft for a community service flight unless … the aeroplane does not carry on board any persons other than:

(i)     a patient mentioned in paragraph 6(2)(a), and any other passenger who accompanies a patient to provide support and assistance; and

(ii)     the operating crew …

(e)    Clause 9 imposes a “condition on a flight crew licence that its holder must not pilot an aeroplane operated for a community service flight” unless the holder has the particular aeronautical experience set out in cll 9(1)(a)-(d).

(f)    Clause 10 imposes “a condition on a flight crew licence that its holder must not pilot an aeroplane operated for a community service flight unless”, among other things, the holder submits the relevant flight notification to Airservices Australia that “identifies the flight as a community service flight” and the holder records that the flight is a community service flight in the relevant logbook (in addition to other logbook requirements prescribed in regulation 61.350 of the CASR).

(g)    Clause 11(2) imposes “a condition on a flight crew licence that its holder not pilot an aeroplane for a community service flight” unless the aeroplane meets the maintenance requirements in cl 11(2).

GROUNDS OF REVIEW 1, 2 AND 3 – THE ULTRA VIRES GROUNDS

134    Grounds of review 1, 2 and 3 concern the proper construction of the CA Act and the CASR. By Grounds 1, 2 and 3, Angel Flight contends that the Instrument was not authorised by regulation 11.068 of the CASR for the following reasons:

(a)    the “class of authorisation” specified in the Instrument is not a “class of civil aviation authorisation” prescribed by the CASR: Ground 1;

(b)    further or alternatively, the Instrument was not authorised by regulation 11.068 of the CASR because:

(i)    the Instrument is expressed to apply in relation to a type of aviation operation (“community service flights”) and not a class of persons, aircraft or aeronautical product as required by s 98(5AA) of the CA Act;

(ii)    pursuant to s 98(5AA) of the CA Act, the Instrument is not a “legislative instrument”; and

(iii)    regulation 11.068 of the CASR only empowers CASA to make legislative instruments: Ground 2; and

(c)    further or alternatively, the Instrument creates a new class of operation, namely “community service flights”, the creation of which is not authorised by regulation 11.068 of the CASR: Ground 3.

Angel Flight’s submissions on Grounds 1, 2 and 3

Angel Flight’s interest

135    Angel Flight submits that it is a not-for-profit charter that coordinates CSFs including by arranging flights for the transportation of persons in need of non-emergency medical attention and services to and from destinations. Angel Flight submits that the Instrument impacts and has the potential to continue to impact the conduct of its charter.

136    Angel Flight submits that it is therefore a person with a particular interest in the Instrument that is not one shared with the general public or a segment of the general public: citing Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 41-42 (per Stephen J) and 75-76 (per Brennan J). Angel Flight submits that it has a special interest in the subject matter of the litigation such that it has standing to bring this application under s 39B of the Judiciary Act 1903 (Cth) challenging the Instrument.

137    CASA did not contend that Angel Flight does not have standing to bring this application. For the reasons submitted by Angel Flight, I accept that Angel Flight has such standing.

The operation of the Instrument

138    Angel Flight submits that the Instrument is expressed to apply to flights in an aircraft conducted as a private operation: Instrument, cl 4. The Instrument’s area of operation was limited to what was defined as “community service flights”. CSFs were flights involving the transport of patients and the person who provides support and assistance to the patient, to and from destinations for non-emergency medical treatment or services, and for a charitable or community service purpose: Instrument, cll 6(2)-(5). Angel Flight submits that the Instrument was purportedly issued by CASA as a result of higher accident and incident rates in respect of CSFs and unique risk factors said to pertain to CSFs.

139    Angel Flight submits that the Instrument imposed conditions on a flight crew licence that its holder must not operate an aircraft for a CSF unless particular conditions were met: Instrument, cl 7(1). These conditions included, amongst other things, that:

(a)    the aeroplane used to conduct the flight not carry any persons other than a patient, a person who provides support and assistance to the patient (precluding the carriage, for instance, of non-patient siblings and infants), and the operating crew (precluding the carriage, for instance, of new volunteer pilots for metering purposes): Instrument, cl 7(1)(c);

(b)    particular aeroplanes not undertake CSFs and pilots not conduct CSFs unless they have particular aeronautical experience: Instrument, cl 9;

(c)    aeroplanes used for CSFs not carrying more than five passengers, and the licence holder and the pilot have undergone a periodical inspection within a certain time or a number of flight hours (which was said to elevate the maintenance requirements for the aircraft from the “private category” to that of a “commercial category”) and have been issued a certificate of airworthiness less than 12 months before the flight, or have been in service for less than 100 hours since the ticket was issued: Instrument, cl 11(2).

Angel Flight’s submissions on the power under regulation 11.068

140    Angel Flight submits that the Instrument fell outside the ambit of the power conferred on CASA by regulation 11.068 of the CASR on a number of bases, including that:

(a)    regulation 11.068(1) permits the issuing of instruments about classes of authorisations defined by regulation 13.375 of the CASR and the Instrument does not impose conditions on any of the classes of authorisations in regulation 13.375;

(b)    the Instrument impermissibly creates a new class or category of operation; and

(c)    the Instrument is not a “legislative instrument” for the purposes of s 98(5AA) of the CA Act.

141    Angel Flight submits that a three-step process is required as to whether the Instrument is within the power conferred by regulation 11.068. Angel Flight submits that, first, the Court must determine the meaning of regulation 11.068 to assess the subordinate legislation CASA is authorised to make under that provision. Second, the Court must ascertain the meaning and operation of the Instrument. Third, the Court must decide whether the Instrument falls within regulation 11.068: citing McEldowney v Forde [1969] 2 All ER 1039 at 1068 per Diplock LJ; Stephens v Commonwealth of Australia [2017] FCAFC 31 at [143].

142    Angel Flights submits that the proper construction and ambit of the law-making power under regulation 11.068 turns on consideration of its subject matter, scope and purpose: citing Australian Maritime Officers’ Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45; 230 FCR 523 at [75]. Angel Flight submits that the relevant context in which to construe the power conferred by regulation 11.068 includes the scheme of demerit points established by Division 3B of Part III, and the requirement imposed by s 9A(1) of the CA Act that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration: citing Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [19].

143    In considering the scope of the instrument-making power conferred on CASA by regulation 11.068, Angel Flight submits that it is relevant that regulation 11.068(1) is contained in Part 11 of the CASR. The purpose of Part 11 is enunciated by regulation 11.005 as being to set out “administrative provisions for the regulation of civil aviation”. Angel Flight submits that this specific statement of purpose is pertinent in assessing the intended ambit of the instrument-making power conferred on CASA by regulation 11.068.

144    Angel Flight submits that a number of provisions of Part 11 are pertinent in assessing the scope of the power under regulation 11.068(1). Regulation 11.032 deals with the making of applications for authorisations where previous authorisations have been cancelled. Regulations 11.035-11.047 confer power on CASA to do certain things, such as test or interview persons or require the provision of statutory declarations, in assessing and considering applications for authorisations. Angel Flight submits that these are machinery provisions which facilitate CASA’s consideration of applications for authorisations. Regulation 11.050 delineates matters CASA can take into account in assessing applications for authorisations, while regulation 11.055 concerns when CASA may grant an authorisation. Angel Flight also notes that authorisations may, by regulation 11.056, be subject to conditions CASA is satisfied are necessary. Regulation 11.065 concerns when authorisations come into effect. Regulations 11.070-11.075 create general conditions that are imposed on authorisations in relation to particular matters, such as requiring holders of authorisations to inform CASA of changes to the holder’s name and address.

145    Angel Flight refers to regulation 11.067, which enables CASA, after an authorisation has come into effect, to impose a condition on the authorisation or otherwise vary a condition of an authorisation. Angel Flight submits that regulation 11.067 allows CASA to prescribe conditions in relation to individual authorisations, whereas regulation 11.068 concerns the imposition of conditions on specified classes of authorisations.

146    Angel Flight notes that breaches of conditions imposed by regulations 11.056, 11.067 or 11.068 are, by regulation 11.077, an offence. Authorisations are, by regulation 11.080, generally not transferrable to another person. Holders of authorisations may apply for their authorisation to be suspended or cancelled under regulation 11.130.

147    Angel Flight refers to the above provisions of Part 11 to demonstrate the breadth of the power conferred on CASA under regulation 11.068. In Angel Flight’s submission, these provisions collectively convey that Part 11 is concerned with regulating the process by which authorisations are obtained and conferred by CASA, imposing conditions on those authorisations (either individually or in relation to a specified class) and providing a means for enforcement of such conditions. In this respect, Angel Flight notes that conditions on authorisations are enforced in two ways. First, by regulation 11.077 prescribing that breach of a condition is an offence punishable by a maximum penalty of 50 penalty units and, second, by the demerit points scheme which may lead to the suspension or cancellation of an authorisation.

148    Angel Flight submits that regulation 11.068(1) assumes the existence of a thing, namely a class of authorisation. It, in Angel Flight’s submission, permits CASA to impose a condition, by legislative instrument, on a specified class of authorisations. In other words, Angel Flight submits that regulation 11.068(1) presupposes the existence of classes of authorisation and allows CASA, by legislative instrument, to impose conditions about matters detailed in s 98(5A)(a) on a class or classes of authorisations.

149    Angel Flight submits that regulation 11.068(2) is also premised on the existence of authorisations granted before a particular legislative instrument is issued under regulation 11.068(1) and clarifies that such authorisations may be made subject to conditions imposed by a legislative instrument issued under regulation 11.068(1). Angel Flight submits that the phrase “authorisation granted” in regulation 11.068(2) conveys that regulation 11.068(1) is concerned with authorisations granted other than by a legislative instrument issued under regulation 11.068(1).

150    Angel Flight submits that regulation 11.068(3) determines that conditions, prescribed by legislative instruments issued under regulation 11.068(1), are taken to be conditions of every authorisation of the class mentioned in the Instrument. In Angel Flight’s submission, legislative instruments issued under regulation 11.068(1) therefore operate to impose conditions on authorisations, and do not and cannot create classes of authorisations.

151    Angel Flight submits that regulation 11.068(4) concerns when conditions imposed by legislative instruments issued under regulation 11.068(1) take effect. In Angel Flight’s submission, it describes when those conditions affect authorisations issued before and after the legislative instrument comes into force: citing CASR, regulation 11.068(4)(a) and (b). In Angel Flight’s submission, regulation 11.068(4) shows that the power under regulation 11.068(1) is directed to enabling CASA to issue instruments that impose conditions on authorisations granted pursuant to the CA Act or the CASR, rather than enabling CASA to create new or additional classes of authorisation.

152    In Angel Flight’s submission, regulation 11.068 is part of a scheme for the imposition by CASA of conditions on classes of authorisations which are enforced by the demerit point system established by Division 3D of Part III of the CA Act. This, in Angel Flight’s submission, is an important contextual matter, as it indicates that the specified classes of authorisation mentioned in regulation 11.068(1) are the classes of civil aviation authorisation established under regulation 13.375. Angel Flight submits that, if this were not the case, conditions imposed by legislative instruments issued under regulation 11.068(1) would not be able to be effectively enforced by CASA, given that breach of those conditions would not result in the holder of an authorisation incurring demerit points.

153    Angel Flight submits that, when read in context and purposively, regulation 11.068(1) confers a power on CASA to issue legislative instruments that impose conditions on the classes of authorisations defined by regulation 13.375 relating to matters detailed in s 98(5A), being (relevantly for present purposes) matters affecting the safe navigation, operation or maintenance of aircraft. In Angel Flight’s submission, there must therefore be a reasonable and rational relationship between an instrument issued under regulation 11.068(1) and the matters detailed in s 98(5A).

154    Angel Flight submits that regulation 11.068(1) only permits CASA to issue instruments that are legislative instruments. Angel Flight contends that regulation 11.068(1) must be read in light of s 98(5AA) of the CA Act, which sets out the circumstances in which an instrument issued by CASA will be a legislative instrument. Angel Flight submits that, when read with s 98(5AA) of the CA Act, the power under regulation 11.068(1) is confined to the issuing of instruments which are expressed to apply to a class of persons, a class of aircraft or a class of aeronautical product. Angel Flight submits that, if instruments are not expressed to apply to particular classes of person, aircraft or aeronautical product they will, by reason of s 98(5AA), not be legislative instruments. In Angel Flight’s submission, as the power under r 11.068(1) is a power to make a legislative instrument, an instrument not expressed to have the requisite application to a class of persons, aircraft or aeronautical product will be beyond power.

155    Angel Flight submits that the adjective “expressed” in s 98(5AA) means “clearly indicated” or “distinctly stated”. In Angel Flight’s submission, the noun “class” in s 98(5AA) refers to a group of persons or things regarded as forming a group because of common attributes, characteristics, qualities or traits. Angel Flight submits that an instrument will not be an instrument of the kind capable of being issued under regulation 11.068(1) if it is not clearly indicated or distinctly stated to apply to one or other of the classes of things set out in s 98(5AA) of the CA Act.

Angel Flight’s submissions on the conditions imposed by the Instrument

156    Angel Flight submits that the Instrument, by cl 5, purports to impose conditions on flight crew licences. Angel Flight submits that “Flight crew licences” are licences issued under Part 61 of the CASR, and there is no reference to “flight crew licences” or licences issued under Part 61 of the CASR in regulation 13.375 of the CASR.

157    Angel Flight submits that the conditions the Instrument seeks to impose on flight crew licences are set out in cll 7-10 of the Instrument. Angel Flight submits that those conditions are, however, premised on the licence holder engaging in a CSF, as defined by cl 6.

158    In Angel Flight’s submission, the substantive effect of the Instrument is to create a class of aviation operation – namely, “community service flights” – and impose conditions on the conduct of such operations. Angel Flight submits that the Instrument uses the device of imposing conditions on flight crew licences to regulate this class of operation. Angel Flight submits that the Instrument purporting to impose conditions on flight crew licences does not detract from its substantive and practical operation. In Angel Flight’s submission, the Instrument does not impose conditions on a specified class of authorisations, namely flight crew licences. Rather, Angel Flight submits that it creates a new class of authorisation, being “community service flights” and imposes conditions on that class of flights.

159    In Angel Flight’s submission, the Instrument is also not expressed to apply in relation to any class of persons, aircraft or aeronautical product. Clause 4 of the Instrument provides that the Instrument applies in relation to a flight in an aircraft conducted as a private operation. Angel Flight submits that, substantively, the Instrument applies to operations that meet the definition of a “community service flight” under cl 6 of the Instrument.

Angel Flight’s submissions on the Instrument falling outside of regulation 11.068(1)

160    In Angel Flight’s submission, the Instrument does not impose conditions on any of the classes of authorisation set out in Column 3 to the table in regulation 13.375 of the CASR. Angel Flight submits that the Instrument therefore does not impose conditions on any of the specified class of authorisations defined by regulation 13.375 and is beyond power for this reason.

161    Alternatively, Angel Flight submits that the Instrument defines and creates a new class or category of operations and purports to impose conditions on the conduct of those operations. Angel Flight submits that, in doing so, the Instrument purports to create a class of authorisation otherwise not provided by either the CA Act or the CASR. In Angel Flight’s submission, the Instrument does not regulate or impose conditions on extant classes of authorisation, but instead creates a new class of authorisation relating to CSFs. Angel Flight submits that the Instrument does not therefore meet the description of subordinate legislation authorised to be made under regulation 11.068(1) and, as a result, is beyond power.

162    Angel Flight submits that the Instrument is expressed by cl 4 to apply to flights in aircraft conducted as private operations. Practically, the Instrument applies to flights that meet the description of a CSF under cl 6. In Angel Flight’s submission, the Instrument is not, in form or in substance, “clearly indicated” or “distinctly stated” to apply to any class of persons, aircraft or aeronautical operations. It applies, in Angel Flight’s submission, to CSFs.

163    For these reasons, Angel Flight submits that the Instrument is beyond the power conferred by regulation 11.068(1) as it is not, by operation of s 98(5AA), a “legislative instrument”. Angel Flight submits that the Instrument is therefore ultra vires regulation 11.068(1) for this further reason.

CASA’s submissions on Grounds 1, 2 and 3

CASA’s submissions on “class of authorisations”

164    CASA submits that Ground 1 must be rejected as the “class of authorisations” specified in the Instrument was not required to be a “class of civil aviation authorisation” prescribed by the CASR, including those referred to in regulation 13.375. That is so, in CASA’s submission, for the following reasons.

165    CASA identified the following textual matters. First, cl 5 of the Instrument provides that the Instrument “imposes conditions on flight crew licences”. Second, a “flight crew licence”, according to Part 1 of the Dictionary to the CASR:

(a)     means a flight crew licence within the meaning of Part 61 [of the CASR];

    and

(b)     includes a certificate of validation of an overseas flight crew licence.

166    Third, regulation 61.005(1) of the CASR provides that Part 61 “sets out the licensing scheme for pilots and flight engineers of registered aircraft”.

167    Fourth, regulation 61.010 of the CASR provides definitions for the purpose of Part 61. It defines a “flight crew licence” to mean:

(a)     a pilot licence; or

(b)     a flight engineer licence; or

(c)    a glider pilot licence.

168    CASA submits that, by reason of the above definitions, the Instrument imposes conditions on “a pilot licence” or “a flight engineer licence” or “a glider pilot licence” but uses the shorthand “flight crew licence” to encompass those classes of licence.

169    In CASA’s submission, regulation 13.375 of the CASR includes, as a “class of civil aviation authorisation”, both:

(a)    a “pilot licence”. In this respect, CASA referred to item 6 of table 13.375 of the CASR, which refers to “Pilot licence” in column 3; and

(b)    a “flight engineer licence”. In this respect, CASA referred to item 7 in table 13.375 of the CASR, which refers to “Flight engineer licence” in column 3.

170    However, CASA noted that regulation 13.375 does not include “a glider pilot licence”.

171    In CASA’s submission, the inclusion of those two classes of licences (out of the three classes of licence that constitute a “flight crew licence”) in regulation 13.375 is immaterial to whether the Instrument, which imposes conditions on “flight crew licences”, was authorised by regulation 11.068 of CASR because:

(a)    regulation 13.375 of the CASR prescribes, “[f]or the purposes of section 30DU of the [CA Act]”, the civil aviation authorisations (specified in column 2 of table 13.375) that belong to classes of civil aviation authorisations (specified in column 3 of Table 13.375);

(b)    as noted immediately above, that prescription is made for the purposes of s 30DU of the CA Act, which is found in Part III, Division 3D of the CA Act and provides (along with Part 13 of the CASR) for a demerit points scheme in relation to strict liability offences under the CA Act and CASR; and

(c)    s 30DU of the CA Act provides that the “regulations must prescribe classes to which particular civil aviation authorisations belong, having regard to the activities covered by the civil aviation authorisations”. CASA submits that the creation of those classes in table 13.375 then allows the number of demerit points which are incurred, in relation to an offence to which that Division applies, to be determined in relation to that class of authorisation. CASA submits that, in that way, the “classes of civil aviation authorisation” created by regulation 13.375 and table 13.375 have a very specific and directed purpose, focused exclusively on enabling the operation of the demerit point scheme established by the CA Act in relation to only specific classes of authorisation.

172    CASA submits that, by contrast, regulation 11.068 provides that CASA may issue a legislative instrument that imposes a condition relating to “matters mentioned” in s 98(5A) on a “specified class of authorisations”. In this respect, CASA submits that:

(a)    The relevant “matter mentioned in s 98(5A)” is “matters affecting the safe navigation and operation, or the maintenance, of aircraft”: CA Act, s 98(5A)(a).

(b)    Regulation 11.068(1) does not require that the class of authorisation be “prescribed” by the CASR (in contrast to s 30DU of the CA Act), and no such classes of authorisation have been prescribed by the CASR or otherwise. Rather, regulation 11.068(1) requires that the class of authorisation be “specified” (that is, “specified” in the Instrument), and cl 5 of the Instrument “specifies” the class as “flight crew licences” as defined in Part 1 of the Dictionary to the CASR.

(c)    Regulation 11.068(2) supports that construction. It provides that “[t]he class of authorisations may include authorisations granted before the imposition of the condition”. The use of the word “may” negates any intention by the legislature to fix the “specified class of authorisations” by reference to a pre-determined list.

173    In CASA’s submission, the list of “classes of civil aviation authorisations” provided for in regulation 13.375 is not complete, and does not cover every civil aviation authorisation. CASA submits that, for example, glider pilot licences are not included in table 13.375 and, given that the list of civil aviation authorisations is incomplete, fixing the powers in regulation 11.068 by reference to only those classes referred to in table 13.375 would limit CASA’s powers to impose conditions on those aviation authorisations. CASA submits that result would unduly curtail CASA’s functions and undermine the objects of the CA Act.

174    For these reasons, CASA submits that “class of authorisations” specified in the Instrument is not required to be a “class of civil aviation authorisation” prescribed by the CASR including regulation 13.375. For these reasons, CASA contends that Ground 1 must fail.

CASA’s submissions on the nature of the Instrument

175    As to the nature of the Instrument, CASA submits that the source of CASA’s power to issue the Instrument is found in s 98(5A)(a) of the CA Act and regulation 11.068 of the CASR.

176    CASA submits that s 98(5A)(a) of the CA Act provides that regulations “may empower CASA to issue instruments in relation to … matters affecting the safe navigation and operation, or maintenance, of aircraft” and “the airworthiness of, or design standards for, aircraft”. Regulation 11.068(1) of the CASR then provides that, “[f]or subsection 98(5A) of the [CA Act], CASA may issue a legislative instrument that imposes a condition relating to a matter mentioned in that subsection on a specified class of authorisations”.

177    CASA submits that s 98(5AA) of the CA Act, together with s 98(5AB), serve a definitional function. That is, those subsections deem instruments expressed to apply in relation to certain matters of general application to be a legislative instrument (citing s 98(5AA)), or to not be a legislative instrument if expressed to apply in relation to certain matters of specific application (citing s 98(5AB)). However, CASA submits that ss 98(5AA) and 98(5AB) do not exhaust the matters on which an instrument may be made under s 98(5A)(a).

178    CASA submits that s 98(5A)(a) of the CA Act, not s 98(5AA), governs the scope of matters about which CASA may issue an instrument. CASA submits that s 98(5AA) does not limit the subject matter of the legislative instruments that CASA may issue. CASA submits that, rather, the subsection deems that, if an instrument is expressed to apply in relation to a class of persons, a class of aircraft or a class of aeronautical product, then that instrument will be a legislative instrument. CASA submits that, as long as an instrument does not fall within a category of instrument expressed in s 98(5AB) (that is, an instrument expressed to apply in relation to a particular person, aircraft or aeronautical product), it may be capable of being characterised as a legislative instrument.

179    CASA submits that it is clear on its face that the Instrument is not expressed to apply in relation to a particular person, aircraft or aeronautical product. CASA contends that the Instrument is expressed to impose conditions on “flight crew licences” and, therefore, the relevant “class of persons” for the purposes of s 98(5AA)(a) consists of persons holding a “flight crew licence” and the Instrument falls within s 98(5AA) because it is an instrument expressed to apply in relation to a “class of persons”.

180    CASA submits that, even if the Instrument were not expressed to apply in relation to one of the matters set out in s 98(5AA), it would still properly be characterised as a legislative instrument. In this respect, CASA relied on the Full Federal Court’s judgment in RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855; 113 FCR 185 (RG Capital Radio) (Wilcox, Branson and Lindgren JJ).

181    CASA submits that this is so for five reasons. First, CASA submits that the Instrument is a prospective rule of general application. Second, CASA submits that the Instrument’s legislative character is reflected in Parliament’s control over the Instrument, given the Instrument is subject to the tabling and disallowance process in Chapter 3, Part 2 of the Legislation Act. Third, CASA submits that the Instrument is published on the Federal Register of Legislation in accordance with Chapter 2, Part 1 of the Legislation Act and, in CASA’s submission, this requirement of publication, although not a compelling indication, is consistent with the decision to make the Instrument having a legislative character. Fourth, CASA submits that it engaged in wide public consultation before making the Instrument which, in CASA’s submission, emphasises the general nature of the Instrument. Fifth, CASA submits that, in making the Instrument, CASA was exercising its functions under the CA Act and, in CASA’s submission, such decision-making is consistent with the true characterisation of the Instrument being legislative.

182    CASA submits that, for these reasons, the Instrument is properly characterised as a “legislative instrument” (whether or not it is a legislative instrument of a kind which s 98(5AA) of the CA Act describes) and therefore was authorised by regulation 11.068 of the CASR.

CASA’s submissions as to whether the Instrument creates a relevant class

183    CASA submits that its response to this ground is similar in substance to its answer to Angel Flight’s Ground 1. CASA submits that cl 5 of the Instrument provides that the Instrument “imposes conditions on flight crew licences”. The Instrument does not create a new class of operation but, in accordance with regulation 11.068(1), imposes conditions on a specified class of authorisations – namely, “flight crew licences”, a class already contemplated by the CASR.

184    CASA submits that the definition of “community service flight” (provided for in cl 6 of the Instrument) is simply a drafting mechanism to identify the circumstances in which those who hold a flight crew licence are obliged to comply with the conditions of the licence attached by cll 7-11.

185    CASA submits that regulation 11.068(1) places no restriction on the conditions, including the conditions of operation by reference to a class of operation, in respect of which CASA may issue a legislative instrument, save that the instrument must relate to a matter mentioned in s 98(5A) of the CA Act, including “matters affecting the safe navigation and operation, or the maintenance, of aircraft”: CA Act, s 98(5A)(a).

186    CASA submits that, accordingly, the Instrument does relate to the matters mentioned in s 98(5A)(a) and imposes conditions on a class of authorisations. CASA submits that, as a result, the Instrument is not unauthorised by reason of the effect that its imposition of conditions has on a class of operations, being CSFs.

Angel Flight’s reply submissions

Submissions on class of authorisations

187    By way of reply, Angel Flight submits that CASA does not construe the collocation “class of authorisations” in regulation 11.068 of the CASR in light of the definitional context provided by the CA Act and CASR. Angel Flight submits that the term “authorisation” is defined by regulation 11.015 of the CASR for the purposes of Part 11 of the CASR to mean, relevantly, a “civil aviation authorisation”. The definition of “civil aviation authorisation” in s 3 of the CA Act defines that term to mean an authorisation under the CA Act or regulations to undertake a particular activity. Angel Flight submits that a “class of authorisation” referred to in regulation 11.068(1) is, therefore, a “class of civil aviation authorisation”.

188    Angel Flight submits that the classes of civil aviation authorisation are set out in column 3 of table 13.375 of the CASR. Angel Flight submits that regulation 13.375 of the CASR is made pursuant to s 30DU of the CA Act. Section 30DU provides that the regulations must prescribe classes to which civil aviation authorisations belong, having regard to the activities covered by the civil aviation authorisations. Angel Flight submits that s 30DU requires the regulations to group civil aviation authorisations by reference to particular activities.

189    Angel Flight submits that, contrary to CASA’s submissions, s 30DU does not provide that the classes of authorisation it requires to be prescribed by regulation are to be prescribed for the limited purpose of administering the demerit point system established by Division 3D of Part III of the CA Act. Angel Flight submits that s 30DU is expressed in general terms. In Angel Flight’s submission, the expression “class of authorisation” in regulation 11.068(1) is a shorthand for “class of civil aviation authorisation”, and therefore refers to the classes of civil aviation authorisation under regulation 13.375. Angel Flight submits that the context provided by the demerit point system created by Division 3D of Part III of the CA Act reinforces this conclusion.

190    Angel Flight submits that the purpose of regulation 11.068(2) is to allow conditions to be imposed (or not imposed) on authorisations granted before a legislative instrument is made under regulation 11.068(1). In Angel Flight’s submission, CASA can impose conditions on authorisations from a class of civil aviation authorisations which commence operation before or after the issue of the legislative instrument. Angel Flight submits that regulation 11.068(2) does not enable CASA to specify new or different classes of authorisation.

191    Angel Flight submits that CASA’s powers will not be curtailed in any significant manner should the Court adopt Angel Flight’s submissions.

192    Angel Flight submits that the word “specified” in “specified class of authorisations” directs attention not to the class of authorisations specified by the relevant legislative instrument but to the classes of authorisation specified by the CASR. Angel Flight submits that those classes of civil aviation authorisation to which conditions can be imposed under regulation 11.068 are those stated or identified in regulation 13.375. In Angel Flight’s submission, there is no warrant for reading “specified” as allowing legislative instruments to create new classes of authorisation.

193    Angel Flight submits that, contrary to CASA’s submission, the Instrument purports to impose conditions on “flight crew licences”. Angel Flight submits that “flight crew licences” are not referred to as a “class of civil aviation authorisation” in regulation 13.375 of the CASR. Only two sub-classes of “flight crew licences”, being pilot and flight engineer licences, are specified in regulation 13.375. Angel Flight submits there is no “class of civil aviation authorisation” compendiously referred to as “flight crew licences” under regulation 13.375.

194    For these additional reasons, Angel Flight submits that the Instrument does not impose conditions on civil aviation authorisations and is therefore ultra vires regulation 11.068(1).

Submissions on the nature of the Instrument

195    Angel Flight submits, in respect of Ground 2, that CASA’s submissions are based on two erroneous assumptions. First, Angel Flight submits that it would be erroneous to find that s 98(5AA) of the CA Act does not exhaustively prescribe when an instrument made by CASA under regulations made pursuant to s 98(5A) are “legislative instruments”. Second, Angel Flight submits that, if an instrument is not a “legislative instrument” for the purposes of s 98(5AB), it must, by definition, be a non-legislative instrument.

196    Angel Flight submits that CASA’s analysis wrongly presupposes that the expression “legislative instrument” in s 98(5AA) is one that has acquired a technical legal meaning which has been picked up and applied by the legislature. Angel Flight submits that, whether “legislative instrument” is a legal technical expression is debatable, as there is no settled definition of what constitutes a legislative instrument and categories of legislative and administrative instruments may not be mutually exclusive.

197    In Angel Flight’s submission, properly construed, s 98(5AA) exhaustively defines the circumstances in which an instrument issued under s 98(5A)(a) will be a legislative instrument. Angel Flight submits that s 98(5A)(a) confers power on CASA to issue “instruments” about particular subject matters and those instruments will be “legislative instruments” if, and only if, they meet one or more of the descriptions set out in s 98(5AA). Angel Flight submits that, conversely, they will not be “legislative instruments” if they meet the description in s 98(5AB).

198    Angel Flight submits that the Instrument is not expressed to apply to any of the classes of person, aircraft or aeronautical product set out in s 98(5AA). Rather, in Angel Flight’s submission, it is expressed to apply to a class of licences (flight crew licences) or a class of flights (community service flights). Angel Flight submits that a class of licences is not a class of persons and the Instrument is therefore ultra vires regulation 11.068(1) for this further reason.

CONSIDERATION OF GROUNDS 1, 2 AND 3

199    I reject Angel Flight’s submissions that the Instrument was ultra vires in that it fell beyond the power conferred by regulation 11.068.

Ground 1

200    Turning to Ground 1, I reject Angel Flight’s submission that the “class of authorisation” specified in the Instrument is not a “class of civil aviation authorisation” prescribed by the CASR. This is so for the following reasons.

The legislative framework

201    To briefly recall, the relevant legislative structure is as follows. First, the “regulations may empower CASA to issue instruments in relation to … matters affecting the safe navigation and operation, or the maintenance, of aircraft …”: CA Act, s 98(5A)(a). Second, such an instrument “is a legislative instrument if the instrument is expressed to apply in relation to … a class of persons”: CA Act, s 98(5AA)(a). Third, such an instrument is “not a legislative instrument if the instrument is expressed to apply in relation to … a particular person …”: CA Act, s 98(5AB)(a).

202    Fourth, “[f]or subsection 98(5A) of the [CA Act], CASA may issue a legislative instrument that imposes a condition relating to a matter mentioned in that subsection on a specified class of authorisations”: CASR, regulation 11.068(1). “A condition imposed by a legislative instrument issued under [regulation 11.068(1)] is taken to be a condition of every authorisation of the class mentioned in the instrument”: CASR, regulation 11.068(3). For the purposes of Part 11 of the CASR, the word “authorisation” means, among other things, “a civil aviation authorisation”, other than “an AOC”, “a delegation”, “the appointment of an authorised person”, or “an authorisation issued by an ASAO”: CASR, regulation 11.015. A “civil aviation authorisation” means an “authorisation under [the CA Act] or the regulations to undertake a particular activity (whether the authorisation is called an AOC, permission, authority, licence, certificate, rating or endorsement or is known by some other name)”: CA Act, s 3. An “AOC” is an “Air Operator’s Certificate issued under Division 2 of Part III” of the CA Act: CA Act, s 3.

203    Fifth, “[f]or the purposes of regulation 11.068 of CASR”, the Instrument “imposes conditions on flight crew licences”: Instrument, cl 5. A “flight crew licence” refers to “a flight crew licence within the meaning of Part 61” of the CASR and “includes a certificate of validation of an overseas flight crew licence”: CASR, Dictionary. Part 61 of the CASR is titled “Flight crew licensing”. Part 61 “sets out the licensing scheme for pilots and flight engineers of registered aircraft”: CASR, regulation 61.005(1). In Part 61 of the CASR, a “flight crew licence” means “a pilot licence”, or “a flight engineer licence”, or “a glider pilot licence”: CASR, regulation 61.010. By way of example, a “pilot licence” means “any of” “an air transport pilot licence”, “a commercial pilot licence”, “a multi‑crew pilot licence”, “a private pilot licence”, or “a recreational pilot licence”: CASR, regulation 61.010. The general term “licence” in Part 61 means “a flight crew licence”: CASR, regulation 61.010. A “privilege”, “in relation to a flight crew licence, … means an activity that the holder of the licence … is authorised, under [Part 61 of the CASR], to conduct”: CASR, regulation 61.010. If “CASA grants a flight crew licence to a person under regulation 61.160” and “the person does not already hold a flight crew licence”, “CASA must issue to the person a document (the licence document) indicating that the person is authorised to exercise the privileges of … the flight crew licence …”: CASR, regulations 61.175(1) and (2).

204    Sixth, the opening words of relevant clauses in the Instrument are as follows:

(a)    “[i]t is a condition on a flight crew licence that its holder must not operate an aircraft for a community service flight unless …”: Instrument, cll 7(1) and 10;

(b)    “[i]t is a condition on a flight crew licence that its holder must not pilot an aircraft operated for a community service flight if …”: Instrument, cl 8(1);

(c)    “[i]t is a condition on a flight crew licence that its holder must not pilot an aircraft operated for a community service flight unless …”: Instrument, cl 9(1);

(d)    “[i]t is a condition on a flight crew licence that its holder must not pilot the aeroplane for a community service flight unless …”: Instrument, cl 11(2) (emphasis added).

The imposition of the conditions

205    In light of this legislative structure and the plain terms of the Instrument, I accept CASA’s submission that the function of the Instrument’s use of the term “flight crew licence” on its terms imposes conditions on a class of persons who are holders of “a pilot licence; or a flight engineer licence; or a glider pilot licence”, but the Instrument uses the more general definition of a “flight crew licence” to encompass each of the three classes of licences.

206    In addition, section 98(5AA)(a) of the CA Act provides that an instrument under s 98(5A)(a) is “a legislative instrument if the instrument is expressed to apply in relation to a class of persons”. Angel Flight submitted that the word “class” in s 98(5AA) refers to a group of persons or things regarded as forming a group because of common attributes, characteristics, qualities or traits. Assuming that interpretation of the word “class” is correct, the Instrument is expressed to apply to a “class of persons”: it is expressed to apply to a group of persons that have a common attribute because the Instrument, on its terms, is expressed to apply to persons who all have the attribute of being the “holder” of a “flight crew licence”.

Regulation 13.375 and table 13.375

207    As to regulation 13.375 of the CASR, Division 3D of Part III of the CA Act is titled “Demerit points scheme”. Provisions in this part provide that “[t]he regulations may prescribe … offences to which [the Demerits points scheme] applies … and the number of points that are incurred in relation to an offence”: CA Act, s 30DT. In addition, the “regulations must prescribe classes to which particular civil aviation authorisations belong, having regard to the activities covered by the civil aviation authorisations”: CA Act, s 30DU.

208    These provisions (ie ss 30DT and 30 DU of the CA Act) are in Part III of the CA Act, which is separate from the provisions in Part VIII of the CA Act that enable CASA to “issue instruments”: see CA Act, s 98(5A). Moreover, regulation 13.375 of the CASR appears in a part of the CASR (ie Part 13) that is separate from Part 11 of the CASR. Part 11 of the CASR concerns “Regulatory administrative procedures”. Part 13 of the CASR is titled “Enforcement procedures”. Regulation 13.375 appears in “Subpart 13K” (which is titled “Voluntary reporting and demerit points schemes”) in “Division 13.K.2” (which is titled “Demerit points scheme”). In addition, regulation 13.375 comes after regulation 13.370, which concerns “Offences to which [the] demerit points scheme applies”. Regulation 13.375 is entitled “Classes of civil aviation authorisations”. It provides that:

For the purposes of section 30DU of the [CA Act], a civil aviation authorisation mentioned in column 2 of an item in table 13.375 belongs to the class of civil aviation authorisation mentioned in column 3 of the item.

(Emphasis added.)

Regulation 11.068, Regulation 13.375 and Table 13.375

209    In light of the legislative framework set out above, I reject Angel Flight’s submission that there is no indication that the prescription of classes of authorisation under regulation 13.375 is made for a limited purpose and therefore it should be presumed that the classes of civil aviation authorisation defined in regulation 13.375 are the “classes of authorisation” referred to in regulation 11.068(1). I am of this opinion for the following reasons.

210    The plain words of the text in regulation 13.375 identify that the regulation is made for particular purposes, namely “for the purposes of section 30DU” of the CA Act and s 30DU of the CA Act appears in the Division of the CA Act which concerns the “Demerit points scheme”. That identifies the universe of purposes to which regulation 13.375 pertains. The regulation is not to be used for any wider purpose as contended by Angel Flight. In my view, it is impermissible to have regard to regulation 13.375 and table 13.375 to conclude that the classes of civil aviation authorisation defined in regulation 13.375 are the “classes of authorisation” referred to in regulation 11.068(1) of the CASR.

211    The fact that regulation 13.375 and the table refer to both a “pilot licence” (see table 13.375, item 6, column 3) and a “flight engineer licence” (see table 13.375, item 7, column 3) is of no consequence and immaterial to whether the Instrument which imposes conditions on “flight crew licences” was authorised by regulation 11.068(1) of CASR. Regulation 13.375 and regulation 11.068 have different purposes and spheres of operation.

212    Section 30DU of the CA Act is part of the operative provisions of Division 3D of Part III of the CA Act and provides, together with Part 13 of the CASR, for a demerit points scheme in relation to strict liability offences under the CA Act and the CASR. Section 30DU provides that:

The regulations must prescribe classes to which particular civil aviation authorisations belong, having regard to the activities covered by the civil aviation authorisations.

(Emphasis added.)

213    The creation of the “classes” referred to in regulation 13.375 allows the number of demerit points which are incurred, in relation to an offence to which that division applies, to be determined in relation to that class of authorisation: see CA Act, ss 30D(2)(a) and (b) and ss 30DX(1) and (3). This is because, if “the holder of a civil aviation authorisation incurs demerit points, the demerit points are incurred in relation to the class of authorisations to which the offence relates”: CA Act, s 30DX(1); see also CA Act, s 30DX(3)(a) (emphasis added).

214    The “classes of civil aviation authorisation” created by regulation 13.375 and table 13.375 have a very specific and direct purpose, focused on enabling the operation of the “demerit points scheme” (established under the CA Act) in relation to only specific classes of authorisation. They enable the demerit points to be “incurred in relation to the class of authorisations”, as opposed to such points being incurred in relation to a “particular civil aviation authorisations”. Table 13.375 groups “[p]articular civil aviation authorisations” into “classes of civil aviation authorisations” for the purposes of the demerit points scheme, and not for the purposes of the instrument-making power in regulation 11.068.

215    Section 30DX provides that demerit points are “incurred in relation to the class of authorisations to which the [relevant] offence relates”: CA Act, s 30DX(1). The relevant class of authorisations for the operation of the demerit points scheme is articulated in s 30DX(1) and repeated in s 30DX(3)(a). It is apparent from these provisions that the incurring of demerit points operates across the class of authorisations prescribed by the regulations. That is why s 30DU requires that the regulations “must prescribe classes to which the particular civil aviation authorities belong, having regard to the activities covered by the civil aviation authorisations”.

216    Further reference to “class of authorisations” is to be found elsewhere within the Division 3D demerit points scheme, including s 30DY (titled “First-time demerit suspension notice”) and s 30DZ (titled “Second-time demerit suspension notice”), which expressly refer to the “class of authorisations” to which those sections apply. By way of example:

(a)    “CASA must give the holder of a civil aviation authorisation a demerit suspension notice under [s 30DY(1)] if”:

(a) the holder incurs demerit points for a prescribed offence; and

(b) taken together with demerit points incurred by the holder for offences committed by the holder in the 3 years ending on the day the offence was committed, the holder has incurred at least 12 demerit points in relation to the same class of authorisations; and

(c) the holder has not previously been given a demerit suspension notice in relation to that class of authorisations.

(CA Act, s 30DY(1); emphasis added.)

(b)    The “effect of giving the notice” under s 30DY(1) of the CA Act is that, “from the start date specified in the notice, all of the holder’s civil aviation authorisations of that class are suspended for the suspension period”, and “the holder is not entitled to be granted a civil aviation authorisation of that class, from the date of the notice until the end of the last day on which a civil aviation authorisation of that class is suspended as a result of the notice”: CA Act, s 30DY(2) (emphasis added).

(c)    In addition, “CASA must give the holder of a civil aviation authorisation a demerit suspension notice under [s 30DZ] if”:

(a)     the holder incurs demerit points for a prescribed offence; and

(b) taken together with demerit points incurred by the holder for offences committed by the holder in the 3 years ending on the day the offence was committed, the holder has incurred at least 6 demerit points in relation to the same class of authorisations; and

(c)     the holder has, once previously, been given a demerit suspension notice in relation to that class of authorisations.

(CA Act, s 30DZ(1); emphasis added.)

(d)    The effect of giving the notice under s 30DZ(1) is that, “from the start date specified in the notice, all of the holder’s civil aviation authorisations of that class are suspended for the suspension period”, and “the holder is not entitled to be granted a civil aviation authorisation of that class, from the date of the notice until the end of the last day on which a civil aviation authorisation of that class is suspended as a result of the notice”: CA Act, s 30DZ(2); emphasis added.

217    It can be seen from the above analysis that regulation 13.375 is for the limited purposes of s 30DU of the CA Act which pertains to the “demerit points scheme” in Division 3D in Part III of the CA Act. In my view, regulation 13.375 has nothing to do with a legislative instrument issued pursuant to regulation 11.068(1) that “imposes a condition relating to a matter mentioned” in s 98(5A) of the CA Act on a “specified class of authorisations”.

218    That position is reinforced by a consideration of regulation 11.068. In my view, regulation 11.068 provides that CASA may issue a legislative instrument that imposes a condition relating to “a matter mentioned” in s 98(5A) of the CA Act, on a “specified class of authorisation”. The relevant “matter mentioned in s 98(5A)” is a matter “affecting the safe navigation and operation, or maintenance, of aircraft”: CA Act, s 98(5A)(a). Regulation 11.068(1) does not require that the class of authorisation be “prescribed” by the CASR, which is in contrast to what is required under s 30DU of the CA Act (which provides that the “regulations must prescribe [certain] classes”). Regulation 11.068(1) requires that the “class of authorisations” be “specified”. Regulation 11.068(1) ensures it is CASA that “may issue a legislative instrument”, and it is that instrument that imposes a relevant condition “on a specified class of authorisations”. As a consequence, and in the absence of any contrary textual or contextual indication, it should be accepted that the relevant class can be “specified” by CASA in the Instrument itself. In this respect, cl 5 of the Instrument clearly “specifies” the relevant class as “flight crew licences” (as defined in Part 1 of the Dictionary to the CASR).

219    I accept CASA’s submission that support for this construction is found in regulation 11.068(2). It provides that “[t]he class of authorisations may include authorisations granted before the imposition of the condition” (emphasis added). The use of the word “may” negates any intention by the legislature to fix the “specified” “classes of authorisations” by reference to some predetermined list (such as the list in table 13.375 of the CASR).

220    There is a further example in the context of the CA Act and CASR which demonstrates that the “classes of authorisations” specified in the Instrument are not required to be a “class of civil aviation authorisation” specified by the CASR, including those referred to in regulation 13.375 and table 13.375. Regulation 11.015 is entitled “Definitions for Part [11]”, and Part 11 includes regulation 11.068. As indicated above, pursuant to regulation 11.015, the definitions for Part 11 define “authorisation” to mean “a civil aviation authorisation other than” four exceptions which are identified in subsections (a)(i)-(a)(iv) of the definition of “authorisation”. Relevantly, the first exception in subsection (a)(i) is the acronym “AOC”. Section 3 of the CA Act defines the acronym AOC as an “Air Operator’s Certificate issued under Division 2 of Part III” of the CA Act. The concept of an AOC is used in various ways in the CA Act. By way of example:

(a)    “[e]xcept as authorised by an AOC” or certain other authorisations, “an aircraft shall not fly into or out of Australian territory”: CA Act, s 27(2)(a); and

(b)    “[a]n AOC may authorise the flying or operation of an aircraft, other than the operation of a foreign registered aircraft on regulated domestic flights, by authorising the flying or operation of aircraft included in a class of aircraft described in the AOC”: CA Act, s 27(2A).

221    However, an AOC is, pursuant to regulation 11.015 of the CASR, not included in the concept of “a civil aviation authorisation” by reason of the definition contained in regulation 11.015. In these circumstances, when regulation 11.068 says that CASA “may issue a legislative instrument that imposes a condition relating to a matter mentioned” in subsection 98(5A) “on a specified class of authorisations”, that does not include an AOC. An AOC cannot be subject to an instrument made under regulation 11.068.

222    That is significant in considering the proper construction and purported interaction of regulation 11.068, regulation 13.375 and table 13.375. It is apparent that regulation 11.068, regulation 13.375 and table 13.375 occupy different universes and are directed to different functions under the CASR and the CA Act. That is apparent from column 3 of item 1 in table 13.375, which refers to an AOC or “Air Operator’s Certificate” as a “certificate issued under s 27 of the” CA Act (see column 2 of table 13.375). An AOC is expressly excluded from the term “authorisation” for the purposes of regulation 11.068 by reason of subsection (a)(i) of the definition of “authorisation” contained in regulation 11.015. Put another way, CASA cannot, exercising a power which is conferred by regulation 11.068, impose a condition on an AOC given that, by reason of regulation 11.015, an AOC is a class of authorisation that is expressly excluded from the concept of “authorisation” for the purposes of Part 11 of the CASR in which regulation 11.068 appears. As a consequence, the reference to AOCs in table 13.375 indicates that regulation 13.375 and regulation 11.068 have different spheres of operation, and one should not be used to restrict the other.

223    By way of example, if Angel Flight’s submissions were accepted, table 13.375 would set out a list of the relevant “classes” of civil aviation authorisation to which regulation 11.068 refers. However, the list in Table 13.375 includes an AOC, which cannot be an “authorisation” for the purposes of regulation 11.068 by reason of subsection (a)(i) of the definition of “authorisation” contained in regulation 11.015. Angel Flight’s submissions failed to explain how those two positions can be reconciled.

224    Finally, reference can be briefly made to the legislative history of regulations 11.068 and 13.375 of the CASR. Regulation 13.375 was first introduced in the compilation of the Civil Aviation Safety Regulations 1998 (Cth) that was prepared on 20 February 2004. That compilation was described as “taking into account amendments up to SR 2004 No. 4”. The terms of regulation 13.375 as then introduced reflect its current form. Regulation 11.068 was introduced by the Civil Aviation Safety Amendment Regulations 2011 (No. 2) (Cth) and came into effect on 27 June 2011. That regulation introduced both the current definition of “authorisation” and regulation 11.068, but it did not refer to the already-enacted regulation 13.375 or table 13.375. In these circumstances, it should not be necessarily assumed that regulations 11.068 and 13.375 were drafted together and a concept referred to in regulation 11.068 necessarily reflects a concept referred to in regulation 13.375 or table 13.375. It should not be assumed that the content of a concept in regulation 11.068 is demarcated by a list in table 13.375.

225    For the reasons set out above, I am of the opinion that the function of regulation 13.375, and table 13.375, do not and cannot have the function of defining the classes of authorisation that apply for the purposes of regulation 11.068. The “class of authorisations” specified in the Instrument is not required to be a “class of civil aviation authorisation” set out in regulation 13.375 or table 13.375 of the CASR.

226    For the reasons stated, I reject Ground 1.

Ground 2

227    I reject Ground 2 and Angel Flight’s submissions that the Instrument is not authorised by regulation 11.068 of the CASR and that the Instrument is not a “legislative instrument” pursuant to s 98(5AA) of the CA Act. I am of this opinion for the reasons that follow.

228    Section 98(5A)(a) of the CA Act provides that the “regulations may empower CASA to issue instruments in relation to … matters affecting the safe navigation and operation, or the maintenance, of aircraft”. Regulation 11.068(1) of the CASR then provides that, “[f]or subsection 98(5A) of the [CA Act], CASA may issue a legislative instrument that imposes a condition relating to a matter mentioned in that subsection on a specified class of authorisations”.

229    Section 98(5AA) of the CA Act, together with s 98(5AB), set out for the purposes of the CA Act and the CASR a characteristic that an instrument must have and a characteristic that an instrument must not have. Pursuant to s 98(5AA), an instrument issued under paragraph (5A)(a) “is a legislative instrument if the instrument is expressed to apply in relation to” “a class of persons”, “a class of aircraft”, or “a class of aeronautical product” (emphasis added). Pursuant to s 98(5AB) of the CA Act, an instrument issued under paragraph (5A)(a) “is not a legislative instrument if the instrument is expressed to apply in relation to” “a particular person”, or “a particular aircraft”, or “a particular aeronautical product” (emphasis added).

230    The Instrument, by cl 5, provides that, “[f]or the purposes of regulation 11.068 of CASR, [the] [I]nstrument imposes conditions on flight crew licences”.

231    A “flight crew licence” is defined in Part 1 of the Dictionary to CASR as meaning “a flight crew licence within the meaning of Part 61 [of the CASR]”, and “includes a certificate of validation of an overseas flight crew licence”. Part 61 of the CASR regulates “flight crew licensing”. Part 61 “sets out the licensing scheme for pilots and flight engineers of registered aircraft”: CASR, regulation 61.005(1).

232    As stated above, it is apparent that the Instrument imposes conditions on flight crew licences. It applies in relation to a class of persons, namely holders of flight crew licences. It is tolerably clear that it does not apply to a particular person, a particular aircraft, or a particular aeronautical product, and therefore does not fall within s 98(5AB) of the CA Act. It is clear on its face that the Instrument is not expressed to apply in relation to a particular person, aircraft or aeronautical product. The relevant “class of persons” for the purposes of s 98(5AA)(a) consists of persons holding a “flight crew licence”, and the Instrument falls within s 98(5AA) because it is an instrument expressed to apply in relation to a “class of persons”.

233    It may be that, in its practical effect, the Instrument applies to a class of persons (namely, holders of flight crew licences) when those holders are engaged in a particular activity (namely, CSFs). However, that does not mean that the Instrument fails to satisfy the requirement in s 98(5AA) of the CA Act, being that it be “expressed to apply in relation to … a class of persons” (emphasis added). That is because the Instrument expressly imposes conditions on a flight crew licence holder. If a person does not hold such a licence, the Instrument does not apply to them. There is nothing in ss 98(5AA) or 98(5B) which indicates that an instrument under s 98(5A) cannot relate to the activities conducted by a class of persons, as long as the instrument is “expressed to apply in relation to … a class of persons”. To the contrary, s 98(5A) expressly contemplates that the instrument will relate to the broad formulation of “matters affecting the safe navigation and operation, or the maintenance, of aircraft”. There is nothing in that formulation which indicates CASA cannot make an instrument that, in its effect, applies to a class of persons that are engaged in a particular sector or sub-sector of aviation. In these circumstances, it should not be accepted that the Instrument, which is “expressed to apply” to flight crew licence holders, offends s 98(5AA) of the CA Act.

234    For these reasons, I am satisfied that the Instrument is properly characterised as a “legislative instrument” pursuant to s 98(5AA) of the CA Act and, as a consequence, was authorised by regulation 11.068. It follows that Ground 2 must be rejected.

235    That position is supported by general principles concerning the nature of a legislative decision. In RG Capital Radio, the Full Federal Court referred to the following principles:

(a)    “[p]erhaps the most commonly stated distinction between [decisions of an administrative character and decisions of a legislative character] is that legislative decisions determine the content of rules of general, usually prospective, application whereas administrative decisions apply rules of that kind to particular cases”: RG Capital Radio, [43];

(b)    “in [Queensland Medical Laboratory v Blewett (1988) 16 ALD 440; 84 ALR 615], Gummow J “identified control by the Parliament as a fundamental characteristic of legislative power reposed in the Executive”. That statement may be accepted, on the understanding that Gummow J did not suggest parliamentary control was an essential characteristic of such a power …”: RG Capital Radio, [52] (internal citations in the original);

(c)    the “absence of any provision for disallowance by Parliament points against characterisation of a decision under [the relevant legislative provisions] as legislative”: RG Capital Radio, [56]. However, “although persuasive, the absence is not fatal to such a characterisation”: ibid. No “case declares provision for disallowance to be a litmus test of legislative character”, and its “absence is to be taken into account as a factor pointing against that character, but that is all”: ibid;

(d)    as to the requirement that the relevant instrument be published, the Full Court did not find that “requirement to be a compelling indication of the legislative character of the decision”, but “the requirement of publication is consistent with the decision having a legislative character”: RG Capital Radio, [58].

(e)    in SAT FM Pty Ltd v Australian Broadcasting Authority (1997) 75 FCR 604; (1997) 46 ALD 305 (SAT FM), Sundberg J (at 608) treated an obligation of wide public consultation as endowing the relevant decision with “a legislative rather than an administrative character”: RG Capital Radio, [59];

(f)    in SAT FM, Sundberg J commented (at 608) that “[t]he subject matter for decision involves complex policy questions”, which was “another pointer to a decision … being of a legislative character”: RG Capital Radio, [63];

(g)    the Full Court stated that wide policy considerations are “consistent with a legislative result”: RG Capital Radio, [66]; and

(h)    “the absence of provision for executive variation or control is an indicator that a [relevant] decision … has a legislative character”: RG Capital Radio, [71].

236    Having regard to those principles, in addition to satisfying the requirement of s 98(5AA)(a) of the CA Act, the Instrument is also generally legislative in character, for the following reasons.

237    First, the Instrument is a prospective rule of general application. The Instrument is clearly prospective given it commenced on 19 March 2019 and will be repealed at the end of 18 March 2022: Instrument, cl 1. The Instrument is intended to lay down conditions affecting a class of individuals (namely, individuals who hold and wish to maintain a flight crew licence). As stated above, the Instrument imposes conditions on holders of flight crew licences.

238    Second, as to parliamentary control, the Instrument is subject to the tabling and disallowance process in Chapter 3, Part 2 of the Legislation Act: see Legislation Act, ss 8(2), 38 and 42.

239    Third, the Instrument is published on the Federal Register of Legislation in accordance with Chapter 2, Part 1 of the Legislation Act. The requirement of publication, although not a compelling indication, is consistent with the decision to make the Instrument having a legislative character.

240    Fourth, in making the Instrument, CASA was plainly exercising its functions under the CA Act, which includes “developing and promulgating appropriate, clear and concise aviation safety standards”: CA Act, s 9(1)(c). Decision-making of the kind required in making the Instrument is consistent with the Instrument being characterised as legislative.

241    In these circumstances, the Instrument is properly characterised as a legislative instrument.

242    Ground 2 must be rejected.

Ground 3

243    By Ground 3, Angel Flight submits that the Instrument creates a new class of operation, namely “community service flights”, the creation of which is not authorised by regulation 11.068 of the CASR. Ground 3 must be rejected for substantially the same reasons referred to in rejecting Grounds 1 and 2.

244    Angel Flights submits that a “community flight service” is a class of “operation”, as opposed to an “authorisation” and, as a consequence, insofar as the Instrument purports to impose conditions on that “operation”, the Instrument is not authorised by regulation 11.068. The new “operation” on which conditions are applied is said by Angel Flight to be “community service flights”.

245    Clause 5 of the Instrument is unambiguous in its terms. Clause 5 of the Instrument provides that the Instrument “imposes conditions on flight crew licences”. The Instrument does not create a new class of operation. The Instrument under regulation 11.068 imposes conditions on a specified class of authorisation, namely “flight crew licences”, which, for the reasons stated in considering Grounds 1 and 2, is a class contemplated under the CASR.

246    I accept CASA’s submission that the definition of “community service flight” in cl 6 of the Instrument is simply a drafting mechanism to identify the circumstances in which those who hold a flight crew licence are obliged to comply with the conditions of that licence which are stated in cll 7 to 11 of the Instrument. That is made clear by the express terms of cl 5 of the Instrument.

247    There is no warrant in the express language used in regulation 11.068(1) of the CASR to place any restriction on the conditions that may be imposed by reference to a class of operation, save that the Instrument must relate “to a matter mentioned” in s 98(5A) of the CA Act, being “matters affecting the safe navigation and operation, or the maintenance of aircraft”: CA Act, s 98(5A)(a).

248    The Instrument does not create a new class of operation. As a result, Ground 3 must be rejected.

GROUND OF REVIEW 5 – REASONABLENESS AND PROPORTIONALITY

Angel Flight’s submissions on Ground 5

249    Angel Flight, by Ground 5, alleges that the exercise of power under regulation 11.068(1) was “unreasonable and/or not reasonably proportionate” in relation to the making of the Instrument as a whole or cll 7(c), 9, 10 and/or 11 of the Instrument.

Submissions as to the whole of the Instrument

250    Angel Flight submits that, in exercising the power under regulation 11.068(1), CASA was required, in the absence of a legislative intention to the contrary, to act “according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought confine himself”: citing Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732; 274 FCR 337 (Brett Cattle) at [285] per Rares J, citing Graham v Minister for Immigration [2017] HCA 33; 263 CLR 1 at [57].

251    In Angel Flight’s submission, the power under regulation 11.068(1) was not one which could be exercised by CASA to result in an operation that was capricious and irrational, or unable to be justified on any reasonable ground, or such that there was not a reasonable proportionality between the Instrument and the power under regulation 11.068(1) so that the Instrument was not a real exercise of the power: citing Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 (Austral Fisheries) at 399 per Beaumont and Hill JJ; Brett Cattle at [300]; Widgee Shire Council v Bonney (1907) 4 CLR 977 at 982- 983 per Griffith CJ.

252    In Angel Flight’s submission, the power under regulation 11.068(1) enabled CASA to impose a condition relating to a matter mentioned in s 98(5A) on a specified class of authorisations. Angel Flight submits that the phrase “relating to” is one of broad import and connotes a relationship between two subject matters: citing Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 338 per Brennan J; O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 376 per McHugh J.

253    In Angel Flight’s submission, the matters mentioned in s 98(5A) are matters affecting the safe navigation and operation, or the maintenance of, aircraft. Angel Flight submits that “affecting” is used in the sense of “acting on” or “producing an effect or change” in one of the three subjects set out in s 98(5A), namely safe navigation or safe operation of aircraft, or the maintenance of aircraft.

254    In Angel Flight’s submission, to be validly within regulation 11.068(1), an instrument issued under that provision must relate to – in the sense of having a direct or indirect relationship with – matters affecting one or other of the following matters:

(a)    the safe navigation of aircraft;

(b)    the safe operation of aircraft;

(c)    the maintenance of aircraft.

255    Angel Flight submits that CASA, in exercising the power under regulation 11.068(1), was required by s 9A(1) of the CA Act to regard the safety of air navigation as the most important consideration.

256    Angel Flight submits that the Instrument’s Explanatory Statement made clear that the Instrument was issued due to CASA’s assessment that CSFs had a “higher risk of accident or incident” due to “risk factors that are not usually present in baseline private operations”. Angel Flight notes that the alleged higher risk of accident or incident in CSFs was premised on two fatal accidents, which occurred on 15 August 2011 and 28 June 2017. Angel Flight submits that, based on these two incidents alone, CASA determined that CSFs had a higher accident or incident rate. Angel Flight submits that what risk factors led to this supposed higher accident or incident rate are not apparent from any of the material filed by CASA in this proceeding.

257    Angel Flight submits that documents produced by CASA under discovery reveal that the Instrument was not, in fact, issued as a response to CSF-related accidents and incidents. Angel Flight contends that there is no evidence or materials before CASA that pointed to any particular risk factors that pertained to CSFs. In these circumstances, Angel Flight submits that the exercise of the power under regulation 11.068(1) to issue the Instrument was not able to be justified on any reasonable ground and was otherwise capricious and irrational.

Submissions as to particular clauses in the Instrument

258    Alternatively, Angel Flight submits that the following provisions of the Instrument had no direct and substantial connection to the power conferred by regulation 11.068(1).

259    Angel Flight refers to cl 7(c) of the Instrument, which requires that an aeroplane conducting a CSF does not carry on board persons other than crew members, a patient and a single other passenger providing the patient with support and assistance. This provision, in Angel Flight’s submission, has no rational or reasonable relationship to safe navigation or operation of the aircraft. Angel Flight submits that there “was not a scintilla of evidence or material before CASA that the navigation or operation of a CSF was impacted by the number of persons being transported”. In Angel Flight’s submission, this provision also has no rational or logical connection with the maintenance of aircraft.

260    Angel Flight submits that cl 10(a) is in a similar category to cl 7(c). In Angel Flight’s submission, no reasonable or rational relationship exists between, on the one hand, the requirement that a licence holder not pilot a CSF with no more than five passengers (including any patient) and, on the other hand, the safe navigation or operation of an aircraft conducting a CSF. Angel Flight submits that no information or material was before CASA to enable it to conclude that the power under regulation 11.068(1) could (or should) have been exercised in this manner. In Angel Flight’s submission, the stipulation under cl 7(c) was, in the circumstances, capricious and irrational and/or unable to be justified on any reasonable ground.

261    Angel Flight refers to cl 9(1)(a) and its requirement that a flight crew licence holder not pilot a CSF unless they had conducted a landing within the previous 30 days of an aeroplane of a particular class, and cll 9(1)(b)-(d)’s requirement that a licence holder have completed a minimum amount of flight time before conducting a CSF concern. There was, in Angel Flight’s submission, no evidence or material before CASA to indicate that this requirement was liable to have any impact whatsoever on the safe conduct of a CSF. Angel Flight submits that there is no evidence that either of the two accidents relied on by CASA, to ground the decision to implement the Instrument, concerned or had anything to do with the relevant pilot’s experience landing an aircraft. In those circumstances, Angel Flight submits that there was no reasonable proportionality or rational relationship between cl 9(1) and the requirement under regulation 11.068(1) that the Instrument relate to a matter affecting the safe navigation or operation of aircraft.

262    Angel Flight refers to cll 9(2)-(3) of the Instrument, which impose conditions in relation to the holders of private pilot licences who do not also hold commercial pilot licences and require the conduct of a certain number of hours of flight time before a holder can engage in a CSF. Angel Flight submits that these provisions concern matters relating to the navigation and operation of aircraft. In Angel Flight’s submission, there was, however, nothing in the materials or evidence before CASA that the experience of pilots, by reference to flight time, had any impact on the two fatal accidents which occurred on CSF flights or had anything to do with accidents or incidents in CSFs. Angel Flight submits that there was therefore no reasonable or rational basis for the decision or determination to issue these provisions of the Instrument.

263    Angel Flight refers to cll 10(c) and (d) of the Instrument which impose requirements to log flights as CSFs and make records in personal logbooks about the conduct of CSFs. Angel Flight submits that none of these matters are capable of being seen to reasonably relate to the safe navigation or operation of aircraft involved in a CSF. Nor, in Angel Flight’s submission, do they have any reasonable or logical relationship to the maintenance of aircraft. Angel Flight submits that there was no evidence or material before CASA which pointed to such notification and recordkeeping requirements having anything to do with the two fatal accidents CASA relied on to establish that CSFs had higher rates of crashes.

264    Finally, Angel Flight refers to cl 11 of the Instrument, which imposed limitations on when the holder of a flight crew licence could pilot an aeroplane by reference to when the aeroplane had undergone inspections. Angel Flight submits that these requirements plainly related to matters affecting aircraft maintenance. In Angel Flight’s submission, there was, however, nothing in the evidence or material before CASA that indicated any relationship at all between the maintenance of aircraft involved in a CSF and the two fatal accidents relied on by CASA to establish that CSFs had a higher rate of incidents and crashing. In Angel Flight’s submission, cl 11 had no reasonable or rational relationship to a matter relating to or affecting aircraft maintenance.

CASA’S submissions on Ground 5

265    CASA submits that there is no basis in the evidence to provide any foundation for the allegation that CASA exercised the power under regulation 11.068(1) in a manner which was “unreasonable” and/or “not reasonably proportionate”, in relation to the making of the Instrument as a whole or cll 7(c), 9, 10 and/or 11 of the Instrument.

266    CASA submits that the power conferred by regulation 11.068(1) of the CASR is subject to the legal presumption that the legislature intends the power to be exercised: citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 (SZVFW) at [4] per Kiefel CJ and [80] per Nettle and Gordon JJ.

267    CASA submits that, because the Instrument is a legislative instrument, being a form of delegated legislation, the question is whether the Instrument is capable of being considered to be reasonably proportionate to the pursuit of the purpose of the enabling legislation. That, in CASA’s submission, requires a rational relationship (or sufficient connection) between the purpose for which the power is conferred by the enabling legislation and the instrument made in furtherance of that purpose, whether that purpose be widely or narrowly defined: citing Attorney-General (South Australia) v Adelaide Corporation [2013] HCA 3; 249 CLR 1 (Adelaide Corporation) at [58]-[59] per French CJ; [117]-[118] per Hayne J; [199]-[201] per Crennan and Kiefel JJ; and Austral Fisheries at 399 per Beaumont and Hill JJ.

268    CASA submits that an administrative decision will not be unreasonable if it lies within the scope of rational decision-making, and “if there is room for a logical or rational person to reach the same decision on the material before the decision maker”: citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS) at [135] per Crennan and Bell JJ.

269    CASA submits that, on judicial review, the process “does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker”: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Minister for Immigration v Li) at [66] per Hayne, Kiefel and Bell JJ; see also [30] per French CJ and [106] per Gageler J.

270    CASA submits that, while the test for legal unreasonableness in respect of an administrative decision remains a stringent one, it is even more so in the context of determining if delegated legislation is reasonably proportionate. CASA submits that a challenge to the validity of a legislative instrument must meet a “much sterner onus” than that applicable where an administrative decision is under review: citing Donohue v Australian Fisheries Management Authority [2000] FCA 901; 60 ALD 137 (Donohue) at [18] (Heerey J), which cited Austral Fisheries Pty Ltd v Minister for Primary Industries and Fisheries (1992) 37 FCR 463 at 477 (O’Loughlin J) (upheld by the Full Court in Austral Fisheries). CASA submits that the test involves a “high threshold” and does not invite “judicial merits review of delegated legislation”: citing Adelaide Corporation at [48] (French CJ)

271    CASA submits that regulation 11.068(1) of the CASR empowers CASA to issue a legislative instrument that imposes a condition relating to a matter mentioned in s 98(5A) of the CA Act. The relevant “matters” in s 98(5A) are “matters affecting the safe navigation and operation, or the maintenance, of aircraft”. The purpose of the CA Act is to “establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents”: CA Act, s 3A.

272    In these circumstances, CASA submits that the question is then whether the Instrument, and, in particular, cll 7(c), 9, 10 and 11, have a rational relationship with that purpose. CASA submits that the evidence clearly supports a rational relationship with the purpose of the CA Act.

273    CASA relies upon the Explanatory Statement which records that CASA had “assessed that community service flights operations have a higher risk of accident or incident due to the existence of risk factors that are not usually present in baseline private operations” and that the purpose of the Instrument was to mitigate that risk “by placing conditions on flight crew licence holders conducting such operations”: Explanatory Statement, page 1.

274    CASA submits that both the Explanatory Statement, and the evidence of Mr Monahan, identify those higher risks as including:

(a)    operating from unfamiliar locations in varying weather conditions;

(b)    the absence or organisational oversight of safety support from a certified air operator, and a lack of organisational safety risk mitigators; and

(c)    pressure on pilots that may result from self-induced pressure to start or complete a flight because of a passenger’s medical condition (otherwise known as “get-there-itis” or the “mission imperative”): Affidavit of Mr Monahan affirmed 13 November 2020, [24].

275    CASA submits that the evidence of Mr Monahan discloses CASA’s concerns about the particular risks presented by CSFs. CASA submits CASA’s concerns about those particular risks were long held by CASA. CASA submits that it had consulted the CSF industry including Angel Flight, particularly since 2014, on regulating CSFs in order to respond to these risks.

276    CASA rejects Angel Flight’s contention that CASA’s assessment of these risks was “premised on two fatal accidents” and that, “[b]ased on these two incidents alone”, CASA “determined that CSF had a higher accident or incident rate”. CASA submits that it relied upon a wide range of data to inform the making of the Instrument.

277    CASA rejects any suggestion that any clauses in the Instrument were not each rationally connected to the purpose of the CA Act. CASA submits that each clause of the Instrument is supported on the evidence and that the connection between each of the measures, and the safe navigation or operation, or maintenance of the aircraft, is clear.

Angel Flight’s reply submissions

278    Angel Flight submits that the risk factors which CASA asserted applied to CSFs were entirely conjectural. Angel Flight submits that none of the factors relied upon by CASA were the subject of any study, evidence or information in relation to CSFs conducted in the Australian context at any time prior to the Instrument being issued. Angel Flight submits that the personal aviation experience of Messrs Crosthwaite, Watson and Monahan did not extend to ever having flown or otherwise participated in a CSF.

279    Insofar as CASA relies upon academic literature and research, Angel Flight submits that such material was detached both geographically and temporally from the Australian CSF sector at the time the Instrument was made and had no rational or logical connection to the circumstances of the Australian CSF sector.

280    Angel Flight contends that there is no evident or intelligible justification for the notion that the CSFs had peculiar or more pronounced risk factors, or that they resembled commercial flights as asserted by Mr Monahan of CASA. Angel Flight submits that there can be no logical or rational basis for CASA to view CSFs as having a peculiar risk profile, or as having higher accident/incident rates and, as a consequence, the Instrument cannot reasonably be viewed as having been adopted by CASA as a means of attaining the ends of the relevant power.

281    Angel Flight submits that, in the circumstances, there was no rational relationship between the purpose for which the power to make legislative instruments under regulation 11.068(1) was conferred and the Instrument purportedly made in furtherance of that purpose: citing Adelaide Corporation at [58] (French CJ). On that basis, Angel Flight submits that the Instrument was invalid.

282    With respect to particular clauses of the Instrument, Angel Flight submits that the passenger restriction conditions under cll 7(c) and 10(a) could only be rationally justified on the basis that the number of passengers was a factor which contributed to risks peculiar to a CSF. Angel Flight submits that there was no basis for concluding that there were “human factor” challenges unique to CSFs that produced particular risks and, as a result, the passenger restrictions imposed were arbitrary and irrational and cannot reasonably be seen to have been adopted to attain the ends of maintaining, enhancing or promoting aviation safety, or otherwise preventing accidents and incidents.

283    Angel Flight submits that, as there was no material indicating that aeronautical experience contributed to any risk factors unique to CSFs or rates of accidents or incidents in CSFs, the requirements under cl 9 lacked any rational connection to the maintenance, enhancement or promotion of aviation safety.

284    Angel Flight submits that the data collection obligations imposed by cll 10(c) and (d) do not, on any analysis, pertain to the safe operation, navigation or maintenance of aircraft. Angel Flight submits that there was no evidence of any material being before CASA indicating that there were maintenance issues with CSF aircraft that created or contributed to the incidents or accidents, or otherwise produced or enhanced risk factors particularly to CSFs. In these circumstances, Angel Flight submits that the maintenance requirements enacted by cl 11 lacked any tenable connection with the maintenance, enhancement or promotion of air safety.

285    Angel Flight by its further written submissions dated 23 December 2020 made the following further submissions.

286    Angel Flight submits that the accident and incident rates calculated by CASA for the CSF sector ought not be accepted as the CSF data was not empirical and was otherwise not reliable. Angel Flight submits that the flawed basis upon which CASA relies on the CSF data, in order to make a comparative assessment of accident and incident rates for the CSF sector, demonstrates that the issue of the Instrument was arbitrary, irrational and unreasonable.

287    Angel Flight submits that no empirical analysis was ever conducted by CASA about the circumstances of CSFs in the Australian aviation sector. Angel Flight submits that no CSF pilots were spoken to or interviewed. Nor, in Angel Flight’s submission, were any patients or passengers who were transported on CSFs. Angel Flight submits that, apart from accident data, no statistical or quantitative analysis was engaged in by CASA.

288    As a consequence, Angel Flight submits that there is no objective or rational basis for CASA to have concluded at the time the Instrument was issued that risk factors not present in baseline private operations existed or were more pronounced with CSFs. In Angel Flight's submission, there was no evidence before CASA on which it could have rationally concluded that the CSF operating environment was “more challenging” than the operating environment during a standard private flight. This, in Angel Flight's submission, further conveys that the exercise of power by CASA was arbitrary and unreasonable.

289    Finally, Angel Flight submits, in respect to cll 9, 10(c) and (d) and 11, that there was no evidence before CASA which would justify the imposition of the conditions contained in these clauses.

CONSIDERATION OF GROUND 5

290    I turn to consider Ground 5. First, I set out some relevant principles. Second, I set out and consider certain further, relevant evidence of Mr Monahan and Dr Crees. Third, I apply the relevant principles to the evidence in this proceeding.

Relevant principles

291    The relevant legal principles of judicial review on the ground of legal unreasonableness were not in dispute between the parties and can be conveniently summarised as follows.

292    Like “any statutory discretionary power, it is subject to the presumption of the law that the legislature intends the power to be exercised reasonably”: SZVFW, [4]; see also [80] (Nettle and Gordon JJ). Where “it appears that the dominating, actuating reason for the decision is outside the scope of that purpose, the discretion has not been exercised lawfully”: SZVFW, [12] per Kiefel CJ (emphasis added).

293    In Austral Fisheries, Beaumont and Hill JJ stated at 398:

In his work, Delegated Legislation in Australia and New Zealand (1977), Professor Pearce said (at par 2):

“As far as judicial review of delegated legislation is concerned, the principles adopted by the courts when considering the validity of such legislation are, for all practical purposes, the same as those used for judicial review of executive action. The terminology is sometimes a little different – the notions of jurisdiction and error of law are not applied to delegated legislation – but the general doctrine of ultra vires is adopted in like manner in regard to delegated legislation as it is to executive action. Hence there is no need to attempt fine distinctions between the two types of activity for the purposes of judicial review.”

294    Their Honours continued at 399:

First, in the absence of an explicit contrary provision, [the relevant provision] should be interpreted so as not to “result in an operation ... which in [the court’s] opinion is capricious and irrational” … [T]his approach reflects the rule of common sense (rather than law) that it is not to be expected that Parliament intends legislation to operate in a capricious and irrational way.

Secondly, a determination of a plan will be beyond power if it “could not be justified on any reasonable ground”, per Menzies J in Parramatta City Council v Pestell (1972) 128 CLR 305 at 323 …

Thirdly, as Mason CJ said in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 29:

“... this Court has held that, in characterising a law as one with respect to a permitted head of power, a reasonable proportionality must exist between the designated object or purpose and the means selected by the law for achieving that object or purpose. The concept of reasonable proportionality is now an accepted test of validity on the issue of ultra vires ... It is a test which governs the validity of statutes as well as that of regulations. So, in Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 473-474, in deciding whether a law was appropriate and adapted to the protection of the environment, in which event the law would have been valid, it was necessary to consider whether the adverse or extraordinary consequences of the law were disproportionate to the achievement of the relevant protection.”

295    In Brett Cattle, Rares J recently stated at [287]:

The classic expression of the test for determining the validity of delegated legislation is contained in the reasons of Dixon J in Williams v Melbourne Corporation (1933) 49 CLR 142 at 155 … Dixon J said:

To determine whether a by-law is an exercise of a power, it is not always enough to ascertain the subject matter of the power and consider whether the by-law appears on its face to relate to that subject. The true nature and purpose of the power must be determined, and it must often be necessary to examine the operation of the by-law in the local circumstances to which it is intended to apply. Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power …

(Emphasis in the original; citations omitted.)

296    Rares J continued at [302]:

In 1993, Hill J observed when agreeing with Gummow J, in Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 582, that the application of the “reasonably proportionate” test in administrative law was then “still fluid in Australian jurisprudence”. Gummow J, with whom Cooper J also agreed …, suggested that when the question is the validity of delegated legislation made pursuant to a valid enactment, “the proportionality principle is differently focused” to when the issue is the constitutional validity of a law … There, Gummow J identified the fundamental question by reference to what Lockhart J had said in Austral Fisheries … as being whether the delegated legislation is within the scope of what the Parliament intended when it enacted the legislation conferring the power to make the delegated legislation. Cooper J distilled the test as follows:

The test of proportionality reflects an underlying assumption that the legislature did not intend that the power to enact delegated legislation would be exercised beyond what was reasonably proportionate to achieve the relevant statutory object or purpose; the test of reasonableness assumes that the legislature did not intend to confer a power to enact delegated legislation which enactment no reasonable mind could justify as appropriate and adapted to the purpose in issue and the subject matter of the grant. Whether one describes the test as one of “reasonable proportionality” or “unreasonableness”, the object is to find the limit set by the legislature for the proper exercise of the regulation or rule making power and then to measure the substantive operation of the delegated legislation by reference to that limit. In my view there is no substantive difference between the tests as stated.

(Emphasis in the original; citations omitted.)

297    In Adelaide Corporation, French CJ (at [56]-[57]) reviewed a number of authorities and stated at [58]-[59]:

In South Australia v Tanner [(1989) 166 CLR 161], which concerned the validity of delegated legislation, the majority noted, without demur, that the parties had accepted “the reasonable proportionality test of validity … namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose” … Their Honours equated that test with the test enunciated by Dixon J in [Williams v Melbourne Corporation (1933) 49 CLR 142] and added that it was “in substance, whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose”. The test sets an appropriate limit on the exercise of purposive powers entrusted to a public authority to make delegated legislation. It gives due respect to the authority entrusted by the parliament in the law-making body. Historically, it can be regarded as a development of the high threshold “unreasonableness” test derived from the nineteenth century English authorities. It requires a rational relationship between the purpose for which the power is conferred and the laws made in furtherance of that purpose, whether it be widely or narrowly defined.

The high threshold test for reasonable proportionality should be accepted as that applicable to delegated legislation made in furtherance of a purposive power.

(Emphasis added.)

298    Justice Hayne stated at [117]-[118]:

Consideration of this challenge to the by-law must begin with what was said by Dixon J in Williams v Melbourne Corporation. Dixon J said that “[t]o determine whether a by-law is an exercise of a power, it is not always enough to ascertain the subject matter of the power and consider whether the by-law appears on its face to relate to that subject”. Examination of the legal and practical operation of the by-law may reveal that “it could not reasonably have been adopted as a means of attaining the ends of the power” (emphasis added). He continued by observing that “[i]n such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power”. Two fundamental points follow and must not be obscured. The first is that the relevant question is the character of the relevant provisions and the sufficiency of their connection with the relevant by-law making power. And the second is related to the first: the court is concerned not with the expediency of the by-law but with the power to make it. As Fullagar J later pointed out in Clements v Bull, this Court’s decision in Williams discredited the “idea that a by-law could be held invalid because it appeared to a court to be an ‘unreasonable’ provision”.

Because the Court is here concerned with the power to make by-laws, attention must be given in the first instance to the terms of the by-law making power conferred by the statute. As Gummow J said in Minister for Resources v Dover Fisheries Pty Ltd, “[t]he fundamental question is whether the delegated legislation is within the scope of what the Parliament intended when enacting the statute which empowers the subordinate authority to make certain laws”. Attention can then turn to the legal and the practical effect of the by-law to determine whether it has a sufficient connection to the by-law making power. No doubt that involves a question of degree and judgment. But a conclusion is to be reached paying due regard to “accepted notions of local government” and the fact that “[m]unicipalities and other representative bodies which are entrusted with power to make by-laws are familiar with the locality in which the by-laws are to operate and are acquainted with the needs of the residents of that locality”. It is not to be assumed (and no reason was given to the contrary in this appeal) that any more confined understanding of a by-law making power should be preferred. It is against this background that this challenge to validity must be assessed.

(Citations omitted.)

299    Justices Crennan and Kiefel stated at [198]-[201]:

A test of reasonableness has been applied to the making of by-laws by local authorities under statutory power for a long time. In earlier decisions the test was severely constrained. It was thought that an attack on a by-law on the ground that it was unreasonable was not likely to succeed, because it was assumed that the local authority was to be the sole judge of what was necessary, subject only to the qualification that a by-law might be held invalid if it were such that no reasonable person could pass it.

The approach which is now adopted is that of Dixon J in Williams v Melbourne Corporation. There, his Honour pointed out that it may not be enough to consider whether, on its face, a by-law appears to be sufficiently connected to the subject matter of the power to make it. The true character of the by-law, its nature and purpose, must be considered in order to determine whether it could not reasonably have been adopted as a means of attaining the purposes of the power. It will often be necessary to examine the operation of the by-law in the area in which it is intended to apply.

The by-law there in question regulated the driving of cattle through the streets of the City of Melbourne. The power said to support it was a power for the regulation of traffic. Dixon J said that the ultimate question was whether, when applied to conditions in the city, the by-law involved such an actual suppression of the use of the streets as to go beyond any restraint which could reasonably be adopted for the purpose of preserving the safety and convenience of traffic in general.

Dixon J’s statement of a test of reasonableness bears an obvious affinity with a test of proportionality … In Coulter v The Queen the relevant criterion of validity was said to be whether the impugned rules “are a reasonable means of attaining the ends of the rule-making power”, by reference to Williams v Melbourne Corporation …

(Citations omitted.)

300    In addition to those authorities, the following matters should be noted.

301    First, because the Instrument is a legislative instrument and therefore a form of delegated legislation, the relevant enquiry is whether the Instrument is capable of being considered to be reasonably proportionate to the pursuit of the purpose of the enabling legislation. That requires a rational relationship (or sufficient connection) between the purpose for which the power is conferred by the enabling legislation and the instrument made in furtherance of that purpose: Adelaide Corporation [58]-[59] per French CJ; [117]-[118] per Hayne J; [199]-[201] per Crennan and Kiefel JJ; and Austral Fisheries at 399 per Beaumont and Hill JJ.

302    Second, the Court is “concerned not with the expediency of the [Instrument] but with the power to make it”: Adelaide Corporation at [117] (per Hayne J). “Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker”: Minister for Immigration v Li at [66] per Hayne, Kiefel and Bell JJ. The “requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker”: ibid, [30] per French CJ. Expression “of the Wednesbury unreasonableness standard in terms of an action or decision that no reasonable repository of power could have taken “attempts, albeit imperfectly, to convey the point that judges should not lightly interfere with official decisions on this ground” …”: ibid, [106] per Gageler J (internal quotations in the original; citations omitted).

303    Third, there is “a world of difference between justifiable opinion and sound opinion”: Parramatta City Council v Pestell (1972) 128 CLR 305 (Pestell) at 323 per Menzies J. The “former is one open to a reasonable man; the latter is one that is not merely defensible – it is right”: ibid. The “validity of a local rule does not depend on the soundness of a council’s opinion; it is sufficient if the opinion expressed is one reasonably open”: ibid.

304    Finally, a challenge to the validity of a legislative instrument must meet a “much sterner onus” than judicial review of an administrative decision: Donohue at [18] (Heerey J) citing Austral Fisheries Pty Ltd v Minister for Primary Industries and Fisheries (1992) 37 FCR 463 at 477 (O’Loughlin J) which was upheld by the Full Court in Austral Fisheries. In Adelaide Corporation, French CJ referred to the test of reasonably proportionality as a “high threshold test”: Adelaide Corporation, [59]. Indeed, in closing submissions, senior counsel for Angel Flight accepted that Angel Flight faced a “demanding hurdle” to make out its case on Ground 5.

Further evidence

305    In light of those authorities, the following evidence should be noted.

The evidence of Mr Monahan

306    The cross-examination of Mr Monahan was essentially directed to establishing that the two relevant fatal accidents (referred to above) did not provide any empirical justification or any “root cause analysis” which would justify the imposition of the conditions in the Instrument. The cross-examination of Mr Monahan also sought to demonstrate that CASA had no rational basis for singling out the operation of CSFs for particular treatment and, as such, there was no justification, on any reasonable ground, for the imposition of the conditions in the Instrument.

307    I make the following findings in respect to the evidence relevant to this ground of judicial review.

308    First, I find that Mr Monahan was a forthright and truthful witness who answered questions directly and made concessions where appropriate. I find, as was properly conceded by Angel Flight, that Mr Monahan is an expert who has extensive experience in aviation standards and safety.

309    Second, I accept Mr Monahan’s evidence that, informed by Mr Monahan’s knowledge and experience, Mr Monahan understood and believed that there were certain risks associated with CSFs. Those risks meant Mr Monahan understood and believed such flights were attended by a higher risk of accident or incident due to, for example, the presence of risk factors in the CSF context that are not usually present in normal private flight operations.

310    Third, I accept Mr Monahan’s evidence that the two fatal accidents, the first occurring on 15 August 2011 and the second occurring on 28 June 2017, were not of themselves the reason for the making of the Instrument but were the stimulus for CASA to make further inquiries in relation to the operation of CSFs. I accept Mr Monahan’s evidence that CASA, prior to making the Instrument, considered reports prepared by ATSB in respect to each fatal accident. Mr Monahan deposed, and I accept that, in formulating the policy position set out in the Instrument, CASA’s position was that, while the circumstances of previous accidents “would obviously be relevant”, CASA’s review “would not be limited to the identified causes of those accidents but would explore the broader range of risks applicable to CSF operations and the options that were available to improve safety standards applicable to CSFs”: Affidavit of Mr Monahan affirmed 19 March 2020, [45].

311    Fourth, I accept Mr Monahan’s evidence that, after the second fatal accident in early July 2017, the Director of Aviation Safety and CEO of CASA, Mr Carmody, commissioned a review of CASA’s oversight of CSF operations. I find that it was a result of this review that CASA undertook further investigation into CSF operations. I find that, as part of this review, at or around 4 July 2017 and thereafter, it was Mr Monahan’s understanding that the accident and incident statistics, available to CASA through the ATSB, indicated that, at a minimum, the fatal accident rate in CSF operations appeared to be significantly higher than in other private operations. The intention of the review was to put a policy determination and potential way forward to the Director of Aviation Safety, outlining the particular safety risks and safety policy issues arising in the conduct of CSF operations, to determine whether the current regulation of CSFs as private flights was adequate and, if not, to advance options for improving the applicable safety standards. It was this further review that ultimately resulted in the Flight Standards Branch within CASA producing two standard form recommendations. The first was in September 2017 and the second was in December 2018.

312    To recall, the September 2017 SFR (which is referred to above) set out a number of relevant matters, including the following:

CSF do not operate under the safety umbrella of an AOC holder’s risk identification and management program. In the case of [Angel Flight], there are no formal mechanisms to support pilots on what can be challenging flights due to the variability of the passengers being carried and the nature and importance of the flight. These factors can impose burdens from both an operational and an emotional decision making perspective.

…

There have been two [Angel Flight] flights where a multiple fatality accident has occurred in the last six years.

…

The ATSB regularly publishes summaries of Australian aviation accident and incident statistics. In a variety of reports and statistical summaries …[,] the ATSB has found that the fatal accident rate for General Aviation Private / Business flights has approximated 20 fatal accidents per 1,000,000 flight hours. From 2006-2014, all General Aviation types averaged 8-9 fatal accidents per million departures. The report states that aerial agriculture and private / business flights had the highest and second highest rates followed by survey and photography, aerial mustering and lastly flying training.

Although the number of [Angel Flight] accidents is a statistically small sample and therefore may not be able to form the basis of a statistically valid comparison, it is nonetheless useful to extrapolate and compare the [Angel Flight] accident rate to these statistics.

[Angel Flight] – two fatal accidents in 22000 flights (rounded up = better) Fatal accident rate per million departures = 90.9

[General Aviation] — total fatal accident rate per million departures = 11.3 (worst — 2012)

Regardless of the cause the CSF fatal accident rate is in excess of eight times higher than the ATSB GA statistics.

Whilst the exact cause of this statistical difference cannot be positively determined, it is likely that the contributing factors include: the variability of CSF flight conditions, the relative inexperience and lack of human factors training of [Angel Flight] pilots compared to commercial pilots and the lack of mandatory fatigue limits for private operations combined with the “medical” overtones of the service being provided.

The ATSB previously stated in its response to the CASA DP13170S advised that [sic]:

While the ATSB was unable to ascertain the age demographic of Australian Angel Flight pilots, consideration of (the) four overseas accidents that involved flights that were organised by various Angel Flight agencies identified that the age range of the pilots was from 57 to 81 years old.

A research article by the US National Transportation Safety Board published in 2007 examined general aviation accidents in degraded visibility and identified several variables that were significantly associated with accident involvement. These included:

(a)     pilot age at the time of the accident (with the highest proportion of accidents involving pilots over 60)

(b)     pilot age at certification (with pilots certified at or before age 25 having the lowest accident involvement)

(c)     the pilot not holding an instrument rating increased the accident risk by nearly five times

(d)     commercial pilots had a lower accident involvement than student or private pilots and

(e)     private flights had a higher accident involvement than flights conducted for commercial purposes

In conclusion, the ATSB outlined in their response the varied circumstances under which voluntary community service flights can be undertaken lead to a resulting variation in the associated safety risk.

…

The US National transportation Safety Board (NTSB), when responding to investigations of four accidents that killed eight people and seriously injured two between 2007 and 2008 (each of which involved flights providing charitable medical transportation), formed the following views with respect to CSF style operations involved in the accidents:

•    each of the four pilots in these accidents failed to fully accomplish [certain tasks]

•    in these accidents, the pilots demonstrated shortcomings in sound aeronautical decision-making by failing to adequately assess the weather and their inability to operate the airplane in those conditions;

•    that these pilots did not provide the passengers with the basic level of safety that passengers in these circumstances have a right to expect;

•    the voluntary pilot organization arranging or fostering the flights made no attempt to verify the pilots’ currency;

•    that the pilot’s lack of currency in conducting the flight in instrument conditions placed the passengers at higher risk for an accident;

•    the typical patient seeking a charitable medical flight is not likely aware of the significant differences in pilot training, pilot qualifications, or FAA oversight for a charitable medical flight …

•    although many of the volunteer pilots who provide charitable medical transportation are highly skilled; proficient in operating their aircraft, and prepared to execute an appropriate response to changing flight conditions or emergencies, others may not be;

•    the NTSB is concerned that the pilots flying charitable medical flights receive no guidance, additional training, or oversight regarding aeronautical decision-making, proper pre-flight planning, or the risk of self-induced pressure; and

•    the pilots may have been subject to self-induced pressure to start or complete the flight because of their passengers’ serious medical conditions.

…

313    I accept Mr Monahan’s evidence that he was not satisfied that the data available at the time of the September 2017 SFR was robust enough to form a statistically valid comparison between the CSF sector and the general private aviation sector. I accept that, as at the time of the September 2017 SFR, Mr Monahan had a concern that the fatal accident rate of CSF operations was high compared to standard private flights and that the higher accident rate may be contributed to by unique features of CSF operations that were not present in normal private flight operations. I accept Mr Monahan’s evidence that he instructed Mr Watson of the Flight Standard Branch of CASA to pursue further data analysis of operations within the CSF sector so as to obtain greater clarity as to the safety profile of CSF operations when compared to normal private flight operations.

314    I find that the review conducted by Mr Watson at Mr Monahan’s direction resulted in the December 2018 SFR. I have already set out above the relevant matters which were stated in this December 2018 SFR. To briefly recall, the December 2018 SFR relevantly stated:

(a)    “Since 2011, there have been two CSF accidents resulting in six fatalities. CASA is also aware of multiple accidents and fatalities involving similar operations in the USA”.

(b)    “The lack of direct safety risk mitigators and the reliance on individual, pilot assessments regarding mission acceptance, commencement or continuance, results in an increased need for Pilots in Command (PIC) to be experienced, operationally recent and well versed in inflight management, human factors and threat and error management skills. Persons travelling in CSF aircraft are subject to flight operations of increased risk compared to charter or RPT flights”.

(c)    “There are currently no legislative minimum flight crew licensing, experience or medical requirements for Australian CSF pilots …”.

(d)    “Although the two Australian CSF accidents are a statistically small sample, the fatal accident rate when compared to General Aviation (GA) is several multiples higher …”.

(e)    “Broadly, CSF pilots can operate from a variety of unfamiliar locations in varying weather conditions with no organisational oversight or safety support. They are highly reliant on their own personal skills, knowledge and standards. They are transporting passengers with a very limited understanding of the relative risks between CSF and charter operations”.

(f)    “Other operations such as charter (in small aeroplanes with low time pilots), parachuting and adventure flights are conducted under organisational supervision or within a regulated framework. Passengers on these flights are reasonably informed participants when compared to an air transport passenger or a CSF passenger. The required minimum hours are usually exceeded in normal practice. These flights operate A to A flights usually in good weather and reasonably familiar environments and conditions”.

(g)    “Noting these differences, it is apparent that to provide a modicum of safety equivalence between CSF and other operations carrying uninformed participants, CSF pilot experience requirements should be increased above those for private pilots conducting a private operation” (emphasis added).

315    The December 2018 SFR then referred to certain options, which are set out earlier in these reasons.

316    I accept Mr Monahan’s evidence that CASA’s review, which culminated in the issue of the Instrument, was not solely a response to CSF-related accidents or incidents. Rather, the Instrument was made in response to concerns developed within CASA over some years that there appeared to be unique features associated with the conduct of CSFs, which made them different to standard private flights. I accept Mr Monahan’s evidence that the circumstances of previous accidents were relevant in examining the nature of those unique risks, but CASA’s review went beyond simply reviewing matters related to previous accidents.

317    I accept Mr Monahan’s evidence that safety analysis conducted by CASA (which was an input into CASA’s review, including the December 2018 SFR) included collaboration with experienced statisticians in the Strategic Analysis Section of CASA’s Coordination and Safety Systems Branch. I find that the data available for that analysis included data concerning the number of flight hours conducted by different operations including commercial, charter, private and CSFs. I find that the analysis undertaken by CASA’s Strategic Analysis Section used data provided by BITRE and incident and accident data made available to CASA by the ATSB. I accept Mr Monahan’s evidence that the data made available to CASA by BITRE and the ATSB was taken into account by CASA in finalising the incident and accident data which was made available to the Director of Aviation Safety, Mr Carmody, for his consideration prior to the issue of the Instrument.

318    I accept Mr Monahan’s evidence that CASA’s data analysed three statistical figures by way of comparison. The first was the fatal accident rate which is a measure of accidents involving one or more fatalities. The second was the accident rate which is a measure of all accidents whether or not fatal. The third was the incident rate which is a measure of all incidents occurring in a particular sector of the aviation industry. (As stated above, the difference between an accident and an incident is that an incident does not involve or result in damage to the aircraft or to property on the ground.) I accept Mr Monahan’s evidence that the CASA data analysis indicated to CASA that each of these three key statistical figures – the fatal accident rate, the accident rate and the incident rate – appeared to CASA to be higher in the CSF sector when compared to standard private flights.

319    I accept Mr Monahan’s evidence that the CASA data analysis provided a basis to support a conclusion that the CSF operational environment involved higher levels of risk of operation than standard private operations. In this respect, Mr Monahan’s evidence, which I accept, was that, although the CASA data analysis was not statistically conclusive, it indicated that the fatal accident rate in the CSF sector was 5.4 times higher than in standard private flights; that the accident rate in the CSF sector was 1.5 times higher than in standard private flights; and the incident rate in the CSF sector was 4.5 times higher than in standard private flights.

320    Mr Monahan was challenged in cross-examination about whether this analysis could be said to evidence a statistically significant difference between CSFs and “standard private flights”. Mr Monahan accepted that he had not put before the Court matters related to whether this data analysis could be said to have statistical significance.

321    However, in relation to this data analysis, Mr Monahan deposes that the ATSB provided the Raw Data held by it in relation to incidents and accidents involving CSFs coordinated by Angel Flight. This Raw Data is referred to earlier in these reasons. The Raw Data stated (among other things):

By comparing accident rates and fatal accident rates for CSF with Private/Business/Sports (excluding gliding) over the past 10 years (2008 to 2017), CSF accident rate is 1.5 times higher than that for Private/Business/Sports, excluding the gliding accident rate. However, CSF’s fatal accident rate is 5.4 times tha[n] for Private/Business/Sports (excluding gliding).

322    The Raw Data also noted that the incident rate in the CSF sector was 4.5 times higher than in standard private flights.

323    In this respect, in his second affidavit affirmed 13 November 2020, Mr Monahan also deposed that:

Aviation is an inherently safe activity, in which incident and accident rates are traditionally low.

(a)    Against that background of generally low incident and accident rates, significant percentage increases in comparative incident and accident rates can be a cause for concern for CASA as the industry regulator, responsible for aviation safety.

(b)    Increases of between 1.5 and 5.4 times are considered to be significant by CASA and an indicator of a need for CASA to attempt to identify the potential causes for the increase.

324    I accept this evidence of Mr Monahan.

325    I accept Mr Monahan’s evidence that the CASA data indicated that, having regard to a comparison of fatal accident, accident and incident rates between CSF and standard private flights, CSF operations appeared to be significantly less safe than standard private flights. I accept Mr Monahan’s evidence that the significant increase in these comparative rates in the CSF sector tended to support a conclusion that the operational environment that confronted pilots conducting CSFs was more challenging and involved higher risk levels when compared with standard private flights.

326    I accept Mr Monahan’s evidence that the comparative review of the CSF operational environment, conducted by Mr Roger Crosthwaite and his team in the Branch Manager Flight Standards Division of CASA, concluded that the CSF operational environment involved a set of human factor challenges which are not normally present in standard private operational flights. Those “human factors” refer to a range of variables which impact on human performance and decision making. They include fatigue, stress and mental workload. I accept Mr Monahan’s evidence that these human factors are significant in aviation because they have the potential to impact on the safe performance of flying activities by pilots and in particular the quality of their decision making. That evidence was based on, among other things, Mr Monahan’s extensive aviation experience, which included 3,500 hours of total aeronautical experience in military aviation, flying a range of single and twin engine “turbo-prop” and jet aircraft.

327    Mr Monahan gave evidence, which I accept, that, having considered the work undertaken by the Flights Standard Branch, Mr Monahan understood and believed that key human factors which were present in CSF operations were more frequently associated with the operational environment encountered by commercial pilots undertaking passenger carrying and commercial charter operations rather than standard private flights. I accept Mr Monahan’s evidence that, unlike in the context of a standard private flight, commercial charter flights are regulated to impose higher levels of practical and theoretical training and greater hours of aeronautical experience on pilots who operate in that sector.

328    I accept Mr Monahan’s evidence that the analysis undertaken by CASA gave Mr Monahan the understanding that the CSF operational environment was more challenging than the operational environment encountered during a standard private flight. I accept Mr Monahan’s evidence that he determined that the safety associated with CSFs would need to be set at a higher level than that which applied to standard private flights.

329    I accept Mr Monahan’s evidence that, when CASA is considering altering the safety standards that apply to a particular flying activity, there are four main “levers” that are generally used to make the appropriate adjustments. First, pilot training and experience. Second, ongoing pilot “recency” and proficiency requirements. Third, aircraft airworthiness. Fourth, medical standards. I accept Mr Monahan’s evidence that he considered how to employ those regulatory levers to increase the level of safety associated with CSFs.

330    Mr Monahan also gave specific evidence about the clauses which ultimately appeared in the Instrument. I refer to this evidence in more detail below.

331    I accept Mr Monahan’s evidence that the matters set out above were the basis upon which he recommended to the Director of Aviation Safety, Mr Carmody, that he sign the Instrument into effect which would introduce certain requirements to the CSF sector.

332    In light of the findings set out above, I find that the review undertaken by CASA provided ample evidence, and a reasonable basis to conclude, that the operational environment in the CSF sector entailed greater risk and a more challenging environment than the operational environment encountered during a standard private flight. I find that the conditions in the Instrument were directed to a very specific end, being safe navigation and operation, or the maintenance, of aircraft engaged in CSFs. I find that the conditions were made in good faith and based on CASA’s and Mr Monahan’s considerable experience in relation to aviation safety standards. I find that the conditions reflected what Mr Monahan described as the “main levers” that are generally used to make appropriate adjustments to aviation safety standards. Those levers include adjusting matters relating to pilot training and experience, ongoing pilot “recency” and proficiency requirements, and aircraft airworthiness.

The evidence of Dr Crees

333    I am not satisfied that the evidence of Dr Crees provides an adequate or satisfactory foundation for his opinion that it is not possible to claim that Angel Flight has a higher rate of fatal accidents than private, business or sports aviation flights. I am of this view for the following reasons.

334    First, Dr Crees is not an independent expert witness. He has been a volunteer pilot with Angel Flight since 2004 and a Director of Angel Flight since December 2019. In addition, Dr Crees was an advocate on behalf of Angel Flight in opposition to the Instrument.

335    Second, some of the data used by Dr Crees was from internal Angel Flight records. It was cited as “Internal data, Angel Flight Australia” in Dr Crees’s report. That data was not exhibited to Dr Crees’s report (which was annexure “MP24” to the affidavit of Marjorie Pagani filed 14 February 2020) or to his affidavit. It is not possible to know precisely what internal data Dr Crees had reference to in the preparation of his report and affidavit, nor is it possible to know how that data was collected, or to verify its accuracy. This is in contrast to certain publicly available data from the ATSB, which Dr Crees’s report cited and appeared to accept as being accurate.

336    Third, Dr Crees’s report states that “Angel Flight has been able to analyze [sic] its own data but does not have access to data from the other community service flight providers”. Dr Crees accepted in cross-examination that the results that Dr Crees arrived at in his report were based on different data from the data used by CASA.

337    In these circumstances, Dr Crees’s report should not be given meaningful weight. Even if some weight was to be placed on Dr Crees’s report (and I do not give it meaningful weight), the main conclusion of Dr Crees’s report was that it was not possible to say that there was any statistically significant difference between Angel Flight’s relevant accident rates and the relevant rate for private/business/sports aviation flights. A key conclusion was that, as a result, it was not possible to claim that Angel Flight has a higher or lower accident rate. As will become apparent, I do not accept that statistical significance is a necessary foundation for the exercise of CASA’s power under regulation 11.068 of the CASR.

338    As to the report of Dr Mortlock and Dr Baker (which was annexure “MP25” to affidavit of Marjorie Pagani filed 14 February 2020), that report was ruled inadmissible by the Ruling on Evidence.

Application of principle

339    On the basis of those factual findings, Angel Flight has not, in my opinion, established on the evidence that the exercise of power under regulation 11.068(1) was “unreasonable and/or not reasonably proportionate” in relation to the making of the Instrument as a whole or in respect of cll 7(c), 9 , 10 and/or 11 of the Instrument. There is, in my opinion, a rational connection between:

(a)    the Instrument and the various conditions which it imposes on the holders of flight crew licences; and

(b)    the purposes identified in s 3A of the CA Act (being establishing a “regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents”) and s 98(5A)(a) of the CA Act (namely, “matters affecting safe navigation and operation, or the maintenance, of aircraft”).

340    In explaining why that is so, it is important to recall three matters relating to purpose. First, the main object of the CA Act is stated in s 3A:

The main object of this [CA Act] is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.

341    Second, in “exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration”: CA Act, s 9A(1). Third, relevant instruments issued by CASA must be “in relation to … matters affecting the safe navigation and operation, or the maintenance, of aircraft”: CA Act, s 98(5A)(a).

342    In light of those matters, there is an obvious emphasis on safety and an express emphasis on prevention. “Prevention” means “[t]he action of keeping from happening … an anticipated event …” or “[a]ction intended to provide against an anticipated problem or danger”: Oxford English Dictionary (Oxford University Press, March 2021). There is also an express emphasis on enhancing the safety of civil aviation. “Enhancing” in this context refers to “rais[ing] the level of” civil aviation safety: ibid.

343    Having regard to those matters of purpose and context, there is a rational and reasonable basis connecting the conditions imposed by the Instrument, the purposes of the CA Act and the requirement in s 98(5A)(a) of the CA Act (that is, that the relevant conditions relate to “matters affecting the safe navigation and operation, or the maintenance, of aircraft”). That basis is to be found in two places. First, in the Explanatory Statement which accompanied the Instrument. Second, in the evidence of Mr Monahan.

The Explanatory Statement

344    As to the Explanatory Statement, at page 1, it relevantly provides as follows:

Purpose

The Civil Aviation Safety Authority (CASA) has assessed that community service flight operations have a higher risk of an accident or incident due to the existence of risk factors that are not usually present in baseline private operations. The purpose of the instrument is to mitigate this risk by placing conditions on flight crew licence holders conducting such operations that relate to requirements on the pilot (licence requirements, aeronautical experience, recency and medical fitness), operational and notification requirements and aircraft maintenance requirements.

(Emphasis added.)

345    In light of the evidence of Mr Monahan, I accept that the assessment of CASA referred to in this statement of purpose was sufficiently sound. A reasonable regulator, having regard to the material that was before CASA, could reasonably have assessed that “community service flight operations have a higher risk of an accident or incident due to the existence of risk factors that are not usually present in baseline private operations”. As stated in this Explanatory Statement, I accept that the “purpose of the [Instrument] is to mitigate this risk by placing conditions on flight crew licence holders”.

346    The Explanatory Statement continued:

Overview of instrument

Pilots can operate from a variety of unfamiliar locations in varying weather conditions with no organisational oversight or safety support from a certificated air operator. Pilots conducting such operations might become subject to self-induced pressure to start or complete a flight because of a passenger’s medical condition.

The lack of organisation safety risk mitigators and the reliance on individual pilot assessments regarding a pilot’s acceptance of a volunteer flight, and the flight’s commencement or continuance, results in an increased need for pilots in command to be experienced and operationally recent. CASA has assessed that persons travelling on aircraft conducting community service flights are subject to flight operations of increased risk compared to charter or regular public transport flights. Although such persons are informed that these flights are not charter or regular passenger transport flights, there remains doubt regarding whether a non-aviation professional adequately understands the specific risks posed by this kind of operation.

Since 2011, community service flight accidents have resulted in 6 fatalities. To take account of the elevated risks, CASA considers it is appropriate to establish a regulatory baseline that provides clarity regarding an appropriate minimum safety standard. The instrument is intended to introduce reasonable and proportionate additional safety measures.

The instrument places conditions on the licences of flight crew members that conduct community service flights. The conditions introduce safety measures in relation to pilot licensing, medical fitness, and aeronautical experience. Operational requirements include that community service flights at night must be conducted using instrument instead of visual procedures. A community service flight can only be conducted in an aeroplane, and aeroplanes with a lower standard of airworthiness are excluded. There are also enhanced maintenance requirements for some aircraft.

(Emphasis added.)

347    In relation to these statements, based on the evidence of Mr Monahan, I accept that there was evidence which provided a rational and reasonable basis for the statements in this “Overview of instrument” section. It is apparent from the above extracts of the Explanatory Statement that a rational connection exists between the conditions imposed by the Instrument, the purposes in the CA Act (referred to above), and the requirement identified in s 98(5A) of the CA Act (that is, that the condition relates to a “matter affecting the safe navigation and operation, or the maintenance, of aircraft”).

348    The Explanatory Statement explains that the purpose of the Instrument is to mitigate CSF operational risk by placing conditions on flight crew licence holders conducting those operations. Those conditions relate to pilot licence requirements, aeronautical experience, “recency”, level of fitness, operational and notification requirements and air maintenance requirements. It is readily apparent that such conditions have a direct and obvious connection to “the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents” (CA Act, s 3A) and “the safe navigation and operation, or the maintenance, of aircraft”, which are the matters in s 98(5A)(a) of the CA Act.

349    In this respect, each of the matters referred to in the “Overview of instrument” squarely relate to the topics of pilot training and experience, ongoing pilot “recency” and proficiency requirements and aircraft airworthiness. Moreover, Mr Monahan’s unchallenged evidence was that, when CASA is considering altering the safety standards that apply to a particular flying activity, these matters are three of the four main “levers” that are generally used to make the appropriate adjustments.

350    In addition, the Explanatory Statement under the heading “Overview of instrument” identifies the manner in which CSFs are conducted. It observes that these flights are conducted by volunteer pilots under conditions that can be challenging. It observes that pilots can operate from a variety of unfamiliar locations and varying weather conditions with no organisational oversight or safety support from a certificated air operator. It further observes that pilots conducting such operations might become subject to a self-induced pressure to start or complete a flight because of a passenger’s medical condition. As stated above, on the evidence, there was a rational and reasonable basis for CASA to make those observations, and these factors are all relevant to the safe navigation and operation of aircraft in the CSF sector and the express purposes of the CA Act.

351    The Explanatory Statement further explains that the lack of organisational safety and “risk mitigators”, and the reliance on individual pilot assessments, results in an increased need for pilots in command to be experienced and operationally up-to-date. The conditions in the Instrument are directed to increasing aeronautical experience and the currency of that experience.

352    The Explanatory Statement at page 2 also identifies that, at least as assessed by CASA, CSFs have elevated risk and that the conditions imposed by the Instrument are intended to introduce reasonable and proportionate additional safety measures in relation to the licencing, medical fitness and aeronautical experience of pilots who operate in the CSF sector.

353    The Explanatory Statement identified that, since 2011, community service flight accidents have resulted in 6 fatalities. As I understood it, that is a statement of historical fact.

354    These are all statements from a regulator of air safety to which experienced aviation safety professionals have contributed. Angel Flight also accepts that these matters were expressed in good faith. In such circumstances, one can fairly conclude that the matters set out in the Explanatory Statement are overtly rational and reasonable.

355    I do not accept Angel Flight’s submissions that it is necessary for CASA to demonstrate by some statistical or empirical analysis that a risk factor exists to justify the validity of a condition in an Instrument made under regulation 11.068(1). I do not accept that establishing a statistical significant difference between two subsectors of the aviation of industry is necessary to sustain the validity of an instrument issued under regulation 11.068 of the CASR. That is to impose a burden upon CASA beyond that required by standards of reasonableness and rationality and the requirements in s 98(5A) of the CA Act and regulation 11.068 of CASR. It is sufficient if a rational and reasonable basis exists for CASA to conclude that matters identified in relation to CSFs – such as operating in an unfamiliar location or operating an aircraft in varying weather conditions with no organisational oversight or safety support from a certificated air operator – imposes an elevated risk which the conditions in the Instrument reasonably seek to address and that they are matters affecting the safe navigation and operation, or the maintenance, of aircraft. It is sufficient if the conditions reasonably advance the purposes in the CA Act referred to above or if there is a sufficient connection between the conditions and the relevant objectives of the CA Act.

356    In this respect, Angel Flight’s submissions tended to indicate that, to be valid, it was a requirement for CASA to isolate particular causal links between the circumstances of the CSF sector and the need for the conditions in the Instrument. Angel Flight’s submissions tended to indicate that CASA was required to engage in a process of formulating a testable hypothesis concerning possible causal links, testing that hypothesis through data collection and analysis, and generating an assessment which is likely to be true, including by establishing an acceptable degree of statistical significance.

357    By way of example, in oral closing submissions, senior counsel for Angel Flight submitted:

MR WALKER: … [T]here were no empirical data or analyses from empirical data or analyses that provided differences with statistical significance which would have, in themselves, justified consideration being given to a differential treatment for the imposition of conditions directed to the all-important purpose of safety.

Now, I accept that pointing to the absence of such material or reasoning, what I will call the empirical approach, is pointing to something which, if present, would plainly have justified, in a way that judicial review would never question, the making of an instrument. And I accept that it’s not simply a matter of inverting that and saying, in its absence, therefore, there cannot be an exercise of power lawfully. However, where that is lacking, and if we are correct in the further step of persuading your Honour that there is nothing else that provides the evidently intelligible connection between outcome and purpose so as to satisfy the requirements of the power, then, in our submission, we are not merely well on our way, but we have reached the position where your Honour should vindicate that minimal but critical requirement of rational justification in the exercise of serious administrative powers …

MR WALKER: … [I]n our submission, what you ought to find in accordance with the way that we have written this in the two written submissions in-chief on this point and in the summation that you find in our reply written submission on this point, that there was never an endeavour to connect the imposition of conditions by this instrument in their particular respects with anything that could be learned from the incidents, accidents and fatal accidents about which you have heard … [T]here is nothing in the instrument that can be said to be derived, let alone justified, by lessons learned from any incident, accident or fatal accident or the aggregate of them. There is nothing statistical, in any sense of that word, concerning, for example, numbers of passengers; neither is there anything statistical, whatever one means by that word, about pilot experience, including recency of landings, etcetera …

MR WALKER: … [I]t is equally the case that the idea of simply applying something because it is from overseas without at least something in the nature of investigation, calibration and understanding of comparability would … never be reasonable …

MR WALKER: … [W]hat I hope to persuade your Honour [of] is that once one establishes that there was nothing about the actual accident experience that either produced statistically significant differences between the sectors said to be compared, that in any event, that was an entirely unstable comparison …, totally unstable basis for a comparison which, in any event, produces a difference that cannot be said to be statistically significant …

Then we come to the more pointed lack of any connection … between what was available about the accidents … and … in any of the groups: the CSF group or the private aviation group … [T]here’s no connection … between any data or empirical analysis and the content of the instrument, then one seems to be driven in this case, by default, to what I will call the overseas experience. Now, the overseas experience, as your Honour knows, doesn’t produce what I’m going to call a parallel exercise, namely, where the same framework of reasoning is present, but with the great advantage of there being, in the overseas cases, empirical data to supply the absence that exists in this country …

But when it comes to calling in aid overseas experience, … [y]ou won’t find, with respect, a schema of reference to overseas experience by Mr Monahan which points out why certain experience … should be regarded as casting any particular light let alone unfavourable light concerning the safety record of the Australian operations … [Y]our Honour will look in vain for anything in the nature of empirical studies available for the Australian decision-makers from overseas distinguishing in a meaningful way between flights that can be treated as equivalents of CSFs and other flights which can be treated as a sensible comparator for that …

MR WALKER: … [W]e are left with what, in our submission … is nothing other than well-meaning intuition [as the basis for the Instrument].

358    In reply, senior counsel for Angel Flight further submitted as follows:

MR WALKER: … [The] material does not single out in a way that explains the peculiar risk factor which is the foundation of the reasoning for the instrument. This instrument is not one that says, “For all we know this particular risk factor is common to all kinds of aeronautical operations but we choose, for reasons that a court can’t examine by judicial review, to regulate only one segment of the activities” … We are left with the repeated assertion, in the material leading up to the making of the instrument and the ex post facto justification in the evidence, that there is to be discerned, we would respectfully submit, by not much more than surmise that there may be – that is, a hypothesis is raised – something peculiar about the circumstances or conditions of the CSFs which provides the justification for a CSF-specific instrument … Once it is … accepted that that hypothesis was never the subject of any testing, there were no data that were gathered for the purpose of examining that hypothesis, then one is simply left with the possibility that it is true, just as there is the possibility it is not true … [O]ur submission is that when the approach was taken of positing a peculiarity of CSFs in the face of a lack of data and analysis that meant that that may or may not be true, with no indication of a likelihood one way or the other, one’s left scraping the bottom of the barrel in terms of the intellectual justification for what happened …

[H]ere, there is a plain statement of intent to address a peculiar risk factor, but the peculiar risk factor is not demonstrated, and of course then the connections all fall apart for the reasons examined in cross-examination that none of those provisions of the instrument address something which any analysis of the any of the accidents, incidents, or fatal accidents might have revealed one way or the other. That’s the reason why, in our submission, [when] all proper weight [is] given to the experience of those who considered the making of this instrument, and to overseas … material, … it doesn’t make out the peculiar risk factor, let alone the matching of the instrument to meet a peculiar risk factor.

359    I do not accept this type of methodology was required. This is for two reasons. First, there is no indication in the text of the relevant statutory materials that such an assessment, which is largely based on the methods of applied natural science, is necessary. Second, the authorities provide no indication that such methods are required.

360    As to the text of the relevant statutory materials, the “regulations may empower CASA to issue instruments in relation to … matters affecting the safe navigation and operation, or the maintenance, of aircraft”: CA Act, s 98(5A)(a). In O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356, Toohey and Gaudron JJ at 374 described the words “in relation to” as being “an expression of broad import”. Justice McHugh stated at 376 that the “prepositional phrase “in relation to” is indefinite”, but, “subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters” (internal quotations in the original; emphasis added).

361    Having regard to those matters, I do not accept that the words “in relation to” in s 98(5A) of the CA Act required a connection between the Instrument and “matters affecting the safe navigation and operation, or the maintenance, of aircraft” that was supported by statistical significance or the methods of analysis which were advanced by Angel Flight. It was sufficient if there was “a relationship, whether direct or indirect, between” the two relevant “subject matters”. There was, in particular, no requirement to establish that there was a statistically significant difference between the relevant accident and incident rates of CSFs and the relevant rates of other operations. There was no requirement that the conditions in the Instrument be supported by methods that are coextensive with natural science.

362    As to the position in relevant authorities, Dixon J (as his Honour then was) in Williams v Melbourne Corporation (1933) 49 CLR 142 (at 155) stated that “the true character of the by-law may … appear to be such that it could not reasonably have been adopted as a means of attaining the ends of [the relevant] power” and, in such a case, “the by-law will be invalid” (emphasis added). In Pestell, Menzies J stated at 323 that a “sound opinion” is one that is “right”, but the “validity of a [relevant] rule does not depend on the soundness of a[n] … opinion”; rather, “it is sufficient if the opinion expressed is one reasonably open” (emphasis added). In Adelaide Corporation, French CJ described the relevant test as requiring “a rational relationship between the purpose for which the power is conferred and the laws made in furtherance of that purpose”: Adelaide Corporation, [58]. Chief Justice French also stated that the “reasonable proportionality test of validity” was, “in substance, whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose”: ibid. Justice Hayne (at [117]-[118]) described the test as involving “a question of degree and judgment” and stated that the relevant conclusion:

is to be reached paying due regard to “accepted notions of local government” and the fact that “[m]unicipalities and other representative bodies which are entrusted with power to make by-laws are familiar with the locality in which the by-laws are to operate and are acquainted with the needs of the residents of that locality”. It is not to be assumed (and no reason was given to the contrary in this appeal) that any more confined understanding of a by-law making power should be preferred.

(Emphasis added.)

363    In light of those authorities and the matters referred to, I do not accept Angel Flight’s submissions as to the methods of analysis which were said to be required for the purposes of making an instrument under regulation 11.068 of the CASR. I am satisfied that a reasonable regulator, having regard to the material that was before CASA, could reasonably have adopted the conditions in the Instrument as a means of attaining the ultimate end of “maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents”: CA Act, s 3A.

364    This position is reinforced by the evidence of Mr Monahan.

The evidence of Mr Monahan and the particular conditions

365    On the evidence of Mr Monahan and the findings that I have made in respect to that evidence, I am satisfied that it was reasonable for CASA to form the view that the CSF sector faces higher risks than standard private flights by reason of, amongst other things: