Federal Court of Australia

Nine Network Australia Pty Ltd v Civil Aviation Safety Authority [2021] FCA 1160

ORDERS

THE COURT ORDERS THAT:

1.    Until further order, the operation of the first and second decisions of the respondent, as defined in the originating application of 23 September 2021, made on 22 September 2021 to declare the area within a 3 nautical mile radius of coordinates 374900S 1445800E a restricted area be stayed.

2.    The matter be referred to a judge for the substantive hearing of the application.

3.    Costs be reserved.

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

REASONS FOR JUDGMENT

(revised from transcript)

ROFE J:

1    The application before the court today is made by three applicants, Nine Network Australia Proprietary Limited, Seven Network Operations Limited and the Australian Broadcasting Corporation. The applicants seek interlocutory relief suspending or staying two Decisions (the Decisions) of the respondent, the Civil Aviation Safety Authority (CASA), to declare the area within a three nautical mile radius of coordinates 374900S 1445800E, which I understand to be above the Melbourne CBD, to be a restricted area.

2    The application seeks review of the decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) on grounds including that:

(1)    The respondent did not have jurisdiction to make the Decisions. Regulation 6 of the Airspace Regulations 2007 (the Regulations) provides that CASA must not declare an area to be a restricted area unless, in the opinion of CASA, it is necessary to restrict the flight of aircraft over the area to aircraft flown in accordance with the specified conditions in the interests of public safety. The effect of each Decision is to make the flight of any aircraft subject to approval of “controlling authorities”, Victoria Police and/or Air Services Australia. The respondent has not restricted the flight of aircraft over the area to aircraft flown in accordance with specified conditions. Rather, it has prevented any aircraft to be flown unless approved by another body.

(2)    The making of each Decision was an improper exercise of power under section 5(1)(e) of the ADJR Act in that:

(a)    It was an exercise of a personal discretionary power at the direction or behest of another person. The applicants contend that each Decision was made at the direction or behest of Victoria Police.

(b)    It was an exercise of a power that was so unreasonable that no reasonable person could have exercised the power. The circumstances being protests and demonstrations cannot support an opinion purportedly held by the respondent that it is necessary to restrict the flight of aircraft over the restricted area in the interests of public safety as required by regulation 6 of the Regulations.

3    The applicants relied on the affidavit of Mr O’Beirne to support the application and no material has yet been filed by the respondent in response to the application.

4    Mr O’Beirne’s affidavit dated 23 September 2021 referred to two Notices to Airmen (NOTAMs) being issued by CASA on 22 September 2021, prohibiting entry to Airspace within three nautical miles of the Melbourne CBD below 2500 feet. The first NOTAM was made at 3.49pm and the second NOTAM was made at 5.21pm. Both NOTAMs provide no entry without approval of the controlling authority, Victoria Police, and give a phone number to contact.

5    Mr O’Beirne’s affidavit also refers to a Victoria Police media release issued at 5.51pm on 22 September 2021, which included the following:

As part of the conditions, pilots will need to obtain approval from Victoria Police Air Wing before taking off to ensure that there are no safety risks.

Media outlets will also be required to delay publishing any livestream footage from the air by 60 minutes or at the conclusion of the operation.

This is because protestors were actively monitoring aerial livestreams compromising the police operation and putting the safety of members at risk.

6    For the reasons articulated in Mr Houghton’s submissions this morning, I consider that there is a serious question to be tried on the application. I consider that on the material presently before the court, the balance of convenience lies with the stay of the Decisions until a substantive hearing of the application can take place.

7    I make the following orders:

(1)    Until further order, the operation of the first and second decisions of the respondent, as defined in the originating application of 23 September 2021, made on 22 September 2021 to declare the area within a 3 nautical mile radius of coordinates 374900S 1445800E a restricted area be stayed.

(2)    The matter be referred to a judge for the substantive hearing of the application.

(3)    Costs be reserved.

Associate:

Dated:    23 September 2021