Federal Court of Australia
Civil Aviation Safety Authority v Australian and International Pilots Association [2022] FCA 655
ORDERS
CIVIL AVIATION SAFETY AUTHORITY Applicant | ||
AND: | AUSTRALIAN AND INTERNATIONAL PILOTS ASSOCIATION First Respondent QANTAS AIRWAYS LIMITED Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL Third Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. A writ in the nature of certiorari issue to quash the decision of the third respondent made on 4 September 2020 in the proceeding 2020/1720.
2. The first respondent is to pay the applicant’s and the second respondent’s costs as agreed or taxed.
THE COURT DECLARES THAT:
3. The decision made by a delegate of the applicant on 25 February 2020 to issue administrative instrument numbered CASA.FRMS.0062 is not a "reviewable decision" within the meaning of s 31(1)(b) of the Civil Aviation Act 1988 (Cth).
4. The third respondent does not have jurisdiction to review the administrative instrument numbered CASA.FRMS.0062 made by a delegate of the applicant on 25 February 2020.
THE COURT NOTES THAT:
5. The parties are to endeavour to agree the quantum of costs payable under order 2, fixed if possible in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 The applicant, the Civil Aviation Safety Authority (CASA), has the function under the Civil Aviation Act 1988 (Cth) (the Civil Aviation Act) of conducting the safety regulation of civil air operations by Australian aircraft in Australian territory and outside Australia. The means by which CASA gives effect to that function include the development of aviation safety standards, the issue of certificates and licences, the monitoring of the safety performance of the aviation industry to identify safety related trends and risk factors, and the assessment of international safety developments (s 9, Civil Aviation Act).
2 These proceedings arise from an application by the first respondent, the Australian and International Pilots Association (the Pilots Association), to the Administrative Appeals Tribunal (the Tribunal) for review of an approval given by CASA on 25 February 2020 of the fatigue risk management system (FRMS) of the second respondent, Qantas Airways Limited (Qantas) (the Qantas FRMS). Members of the Pilots Association include Qantas pilots who hold flight crew licences granted or issued under Part 61 of the Civil Aviation Safety Regulations 1998 (Cth) (CASR) (see the Tribunal’s reasons (TR) at [6]). Before the Tribunal CASA contended that the application for review by the Pilots Association should be dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the ground that CASA’s approval of the FRMS was not reviewable by the Tribunal (TR at [2]). That contention was not accepted by the Tribunal in a preliminary decision made on 4 September 2020 in which the Tribunal found that it had jurisdiction under s 31 of the Civil Aviation Act.
3 By its amended originating application for relief under s 39B of the Judiciary Act 1903 (Cth) (the Application), CASA seeks to quash the Tribunal’s preliminary decision. CASA also seeks declarations that the Tribunal does not have jurisdiction to review CASA’s approval of the Qantas FRMS, and/or that the decision by CASA’s delegate to issue the instrument approving the Qantas FRMS is not a “reviewable decision” within the meaning of s 31(1)(b) of the Civil Aviation Act. I note that at the hearing of the Application, CASA advised that it no longer pressed for a writ of prohibition.
4 The present application raises, and ultimately turns on, a question of statutory construction, namely: does CASA’s approval of the Qantas FRMS constitute, for the purposes of s 31(1)(b) of the Civil Aviation Act, the “imposition or variation of a condition” on the flight crew licences of Qantas’ pilots? In light of the way in which argument proceeded on the application, it is also necessary to consider the proper construction of the Civil Aviation Order 48.1 Instrument 2019 (the 2019 CAO) pursuant to which approval for the Qantas FRMS was given.
5 There is no definition of the word “condition” in the Civil Aviation Act. The Pilots Association submitted that the word should be construed as meaning something required as a prerequisite to operating an aircraft and that whether something constitutes a condition therefore depends upon its effect. On this basis, the Pilots Association contended that CASA’s approval of the FRMS had the effect of imposing requirements on the flight crew licences of Qantas pilots and therefore imposed a condition for the purposes of s 31(1)(b) of the Civil Aviation Act, as the Tribunal found.
6 For the reasons set out below, I do not accept that construction of s 31(1)(b). Rather, as CASA and Qantas submitted, the Tribunal erred in finding that it had jurisdiction to review CASA’s approval of the Qantas FRMS. This is because in my view, that approval did not impose or vary any “condition” in the statutory sense on the flight crew licences held by Qantas’ pilots.
7 Finally, I note that the question whether the Pilots Association had standing to bring the application for review, which was mentioned by CASA in its submissions before the Tribunal, was deferred by agreement in the Tribunal (TR at [3]). I also note that the fragmentation of preliminary issues concerning the Tribunal’s jurisdiction to entertain an application for merits review is, in general, undesirable. However, as no issue was raised in this regard at the hearing and as I have found in any event that the Tribunal lacks jurisdiction, I make no further comment on this issue.
8 The applicant relied upon the affidavit of Anthony James Carter, lawyer, affirmed on 21 September 2020 in support of the originating application as originally filed in this Court (Carter affidavit). The Carter affidavit was read subject to a non-contentious amendment, which arose out of the reordering of the parties in the Application, that corrected references in the body of the affidavit to the Tribunal as the “first respondent” to the “third respondent”, and references to the Pilots Association as the “second respondent” to the “first respondent”. While that affidavit identified a number of grounds of judicial review, at the hearing of the Application CASA accepted that the question sought to be raised was the proper construction of s 31(1)(b) of the Civil Aviation Act and that the answer to that question would be determinative of the jurisdictional issue.
9 The Pilots Association sought to rely upon the affidavit of Natalija Nikolic, solicitor, affirmed on 8 December 2020 (Nikolic affidavit). Ms Nikolic gave evidence regarding a preliminary decision made by the Tribunal to extend the time for the filing of any documents (the T documents) by CASA pursuant to its obligation under s 37(1) of the AAT Act pending the determination of the jurisdictional issue. The Pilots Association sought to rely upon the Nikolic affidavit primarily in order to respond to a suggestion by Qantas that the Tribunal’s decision was invalid because it was not based on any evidence, although the Pilots Association also submitted that the documents provided relevant background. CASA objected to the relevance of these documents, as a result of which the Nikolic affidavit was read subject to relevance. Notwithstanding that the “no evidence” issue was not pressed, I consider that the Nikolic affidavit remains sufficiently relevant as background and therefore do not uphold CASA’s objection.
10 The relevant facts are not contentious and may be shortly stated.
3.1 The trial and full FRMS approvals
11 As CASA submitted, flight and duty time limitations are established in aviation regulation for the sole purpose of ensuring that flight crew personnel engaged in air operations can perform their duties at an adequate level of alertness for safe flying. In 2011, the International Civil Aviation Organisation (ICAO) issued Standards and Recommended Practices (SARPs) for fatigue risk management by flight crew members (FCM), including standards to enable air operators to manage FCM fatigue risk under a FRMS. ICAO is a United Nations specialised agency established by the signatory States to the Convention on International Civil Aviation done at Chicago on 7 December 1944 (15 UNTS 295) (Chicago Convention) to provide administrative and air transport policy expertise to State parties in order to enable, among other things, the establishment of uniform international aviation standards. The Chicago Convention is implemented in Australia by the Air Navigation Act 1920 (Cth) and a copy of the Convention and Protocols amending the Convention are set out in schedules to that Act.
12 The Civil Aviation Order 48.1 Instrument 2013 (2013 CAO) was issued by CASA in response to the ICAO SARPs. The 2013 CAO prescribed both specific flight and duty time limitations and fatigue self-management obligations for flight crew, as well as enabling air operators to “develop a customised, but data-driven and scientifically informed, FRMS, tailored to their own operational characteristics and experiences”: see further [42] below.
13 In or around January 2019, Qantas requested CASA’s approval under the 2013 CAO to conduct a trial FRMS. On 5 February 2019 a delegate of CASA approved under cl 8.1 of Appendix 7 to the 2013 CAO, Qantas’ request for a trial FRMS to be implemented subject to conditions (Carter affidavit at [6]; Court Book (CB) at 46). This approval enabled Qantas to demonstrate at least 12 months of operations under the trial FRMS implementation before applying for approval of the full FRMS implementation. (I explain the legislative framework for the approval of a trial and full FRMS later below.) In the interim, the 2013 CAO was repealed by the 2019 CAO, which took effect generally on 2 September 2019 subject to transitional provisions: see [42]-[44] below. Qantas prepared the Qantas FRMS, being an FRMS established in accordance with Appendix 7 to the 2019 CAO (Appendix 7).
14 On 25 February 2020, a delegate of CASA issued Qantas with a full FRMS implementation approval (the FRMS Approval) under the 2019 CAO (Carter affidavit at [8]; CB at 50). The FRMS Approval was contained in an administrative instrument, CASA.FRMS.0062 (the FRMS Approval Instrument).
15 The FRMS Approval Instrument commenced on 1 March 2020 and expires on 30 June 2023. The FRMS Approval applied to Qantas in its capacity as the holder of an Air Operator’s Certificate (AOC) and to FCM and operations identified as being covered by the FRMS. Under the heading “Full FRMS implementation approval”, and subject to the conditions identified in Schedule 1, the FRMS Approval Instrument stated:
4.1 For subclause 1.2 of Appendix 7 of [the 2019 CAO] – I approve each of the elements of the operator’s FRMS that are mentioned in subclause 1.2 of Appendix 7.
4.2 For subclause 9.1 of Appendix 7 of [the 2019 CAO] – I approve the operator’s FRMS, Version 1.0, dated 6 Nov 2018, on a full FRMS Implementation basis.
16 While the Qantas FRMS itself was not in evidence before the Tribunal, it was not in issue that the Qantas FRMS applied in part to long haul international flights (T10/3/21 at 50.24–51.20; TR at [27]).
17 The FRMS Approval was subject to the conditions in Schedule 1 of the FRMS Approval Instrument. These conditions were directed to Qantas in its capacity as the holder of the AOC and included that Qantas must (CB at 51):
(1) ensure that any amendment to the approved FRMS is made available to Qantas’ relevant personnel, including FCM, rostering personnel and managers before it takes effect for any FCM; and
(2) comply with any direction from CASA to amend the content of, or a practice under, its FRMS.
3.2 The Tribunal’s preliminary decision as to jurisdiction
18 On 23 March 2020, the Pilots Association applied to the Tribunal for merits review of the FRMS Approval. The Pilots Association identified the source of the Tribunal’s jurisdiction to entertain its application as s 31(1)(b) of the Civil Aviation Act on the basis that “[t]he effect that the Full Fatigue Risk Management System has on Qantas pilots’ licences enlivens the Tribunal’s jurisdiction” (CB at 58 and 67) (emphasis added). CASA applied for dismissal of the Pilots Association’s application under s 42A(4) of the AAT Act without proceeding to merits review on the basis that the FRMS Approval was not a “reviewable decision” for the purposes of s 31(1)(b) of the Civil Aviation Act (CB at 69). Having applied to join the proceeding, Qantas was joined as a party to the proceedings in the Tribunal. CASA’s and Qantas’ objection to jurisdiction was heard as a preliminary issue by the Tribunal on 18 June 2020 (TR at [1], [25]).
19 On 4 September 2020, the Tribunal delivered its decision on the preliminary jurisdictional issue, finding that the FRMS Approval was a “reviewable decision” under s 31(1)(b) of the Civil Aviation Act and, therefore, that it had jurisdiction to conduct the merits review under s 25 of the AAT Act. In its reasons, the Tribunal (correctly, as the parties accepted) formulated the jurisdictional question as follows:
28. The jurisdiction question depends on whether conditions of the licences of the flight crew were imposed or varied, within the meaning of s 31 of the [Civil Aviation] Act, by virtue of the approval by CASA of the full implementation of the FRMS. If so, there is a reviewable decision.
(See also TR at [5].)
20 The Tribunal considered that in order to resolve that question, it was necessary to construe some of the provisions of the 2019 CAO and, in particular, paragraphs 4.1 and 16.1, as well as paragraphs 8, 9 and 10.2 (TR at [29]). In the critical part of its reasons, the Tribunal found that:
30. As the Explanatory Statement to the 2019 CAO indicates, the Appendices to the 2019 CAO sets out a series of regimes among which an AOC holder may choose. Each regime imposes obligations on the AOC holder and its employees, the FCMs. If the AOC holder chooses one or more of Appendices 1 to 6 of the 2019 CAO, the 2019 CAO itself will impose obligations (described in the 2019 CAO as conditions) on the AOC and on the licences of the FCM.
31. If the AOC holder elects to use Appendix 7, it will be the terms of the FRMS (that is, a document which CASA may approve subsequently to the date of the 2019 CAO), which will spell out the obligations of both the AOC holder and the FCMs.
32. While clause 8(b) of the 2019 CAO refers to ‘each Appendix of this CAO’, therefore including Appendix 7, clause 9.1 does not do so expressly.
33. Clause 8(c) of the 2019 CAO required the AOC holder, as a condition of its certificate to ensure that each of its FCMs complies with each requirement ‘imposed by this CAO on flight crew licences’.
34. The words just quoted seem to me to involve the assumption that the requirements imposed on the licences of FCMs will include those imposed on a trial or full FRMS approval by CASA under Appendix 7 to the 2019 CAO. Otherwise, that which the AOC holder must ‘ensure’ will extend (apart from the general provisions of clause 16.1) only to matters where Appendices 1 to 6 are involved, and not to matters involving Appendix 7. Such a result is out of accord with the intention evident from clause 8(b). In any event, it would be very odd if the licences of the pilots had imposed upon them conditions consistent with the Appendices other than Appendix 7 of the 2019 CAO.
35. That view would suggest that clause 9.1 of the 2019 CAO intends that the ‘limits and requirements’ mentioned in it will, in a case where an approval under Appendix 7 is involved, include the limits and requirements specified in a trial or full FRMS implementation which CASA may approve. In that case, the Tribunal has jurisdiction to entertain the review. Not only must the AOC holder comply with those limits and requirements for an FCM as a condition of its certificate, but the FCM must do so as condition of the flight crew licences.
21 Finally, while the Tribunal also stated that its construction was also consistent with paragraph 1.2 of the FRMS Approval Instrument (TR at [37]), that appears to be by way of an observation rather than as critical to its reasoning. Clearly the terms of the FRMS Approval Instrument cannot bear upon the construction of the 2019 CAO itself or the Civil Aviation Act.
22 Section 25(1) of the AAT Act provides that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. Section 31(2) of the Civil Aviation Act is such an enactment and provides that an “[a]pplication may be made to the Administrative Appeals Tribunal for review of a reviewable decision”. In turn, s 31(1) of that Act provides that “reviewable decision” means:
(a) a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations; or
(b) the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation, contained in such a certificate, permission, permit or licence; …
23 I note that s 31(1) of the Civil Aviation Act defines “decision” as having the same meaning as in the AAT Act. However, the definition in s 3(3) of the AAT Act defines a “decision” as relevantly including “imposing a condition or restriction” and therefore adds nothing to the definition of a “reviewable decision” in the Civil Aviation Act. No party contended otherwise.
24 As earlier explained, the question of whether the Tribunal has jurisdiction turns upon the proper construction of s 31(1)(b) of the Civil Aviation Act and the 2019 CAO; and in particular, whether the approval of the Qantas FRMS by CASA under the 2019 CAO constituted “the imposition of … a condition … contained in” a flight crew licence. These issues of construction must be considered in context (as I shortly explain) and, therefore, it is necessary to consider with some care, the complex and carefully designed legislative scheme under the Civil Aviation Act and subsidiary legislation made pursuant to that Act.
4.2 The legislative scheme for imposing conditions, limitations and directions on civil aviation authorisations
4.2.1 The licensing scheme for aircraft operators created by the Civil Aviation Act
25 The main object of the Civil Aviation 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” (s 3A, Civil Aviation Act). This regulatory framework is comprised of three layers:
(1) the Civil Aviation Act;
(2) the CASR and the Civil Aviation Regulations 1988 (Cth) (CAR); and
(3) the Civil Aviation Orders (CAOs) and other subordinate legislation.
26 With respect to the last of these, CASA explained (at [18] of Applicant’s Submissions (AS)) that:
The CAOs typically contain technical detail and requirements that complement those set out in the CAR. The CAOs are generally made by CASA or its delegates in reliance upon provisions in the CAR, rather than upon the [Civil Aviation] Act itself. CASA may use a CAO to give a direction, instruction, notification, permission, approval or authority that it is otherwise empowered by the CAR to issue to a person under the CAR (pursuant to regulation 5 of the CAR).
27 The starting point is s 27(2) of the Civil Aviation Act which, absent authorisation by an AOC, prohibits the operation of (1) an aircraft into, within and out of Australian territory and (2) an Australian aircraft outside Australia. Section 27(1) in turn authorises CASA to issue AOCs for the purposes of its functions. Thus a body corporate, such as Qantas, wishing to operate aircraft in Australia for prescribed commercial purposes must have an AOC issued by CASA: see ss 27(2), (2A), (2B) and (9) of the Civil Aviation Act, read with reg 206, CAR. In turn, flight crew operating Qantas aircraft must possess a relevant flight crew licence, the requirements and standards for which are prescribed under Part 61 of the CASR.
28 Sections 28(1)(a) and (b) of the Civil Aviation Act relevantly provide that CASA must issue an AOC “if, and only if” satisfied of various matters, including that the organisation of an applicant for an AOC is suitable to ensure that the AOC operations can be carried out safely, and that if CASA requires particulars of licences held by FCM of the organisation, the authorisations conferred by those licences are appropriate.
29 Section 28BA(1) of the Civil Aviation Act provides that:
An AOC has effect subject to the following conditions:
(a) the condition that sections 28BD, 28BE, 28BF, 28BG and 28BH are complied with;
(aa) the conditions subject to which the AOC has effect because of section 28BAA;
(ab) the condition that section 28BI is complied with in relation to each operation, covered by the AOC, to which that section applies;
(b) any conditions specified in the regulations or Civil Aviation Orders;
(c) any conditions imposed by CASA under section 28BB.
(Emphasis added.)
30 Thus a number of general conditions are imposed directly on all AOCs by the Civil Aviation Act and, where “specified in” regulations or CAOs, by those regulations and the CAOs by force of s 28BA(1). In addition, conditions can be “imposed by” CASA under s 28BB of the Civil Aviation Act at the time of issuing the AOC or subsequently on written notice. CASA may also give directions to an aircraft operator about (among other things) the content of its operations manual (reg 215(3), CAR).
4.2.2 The licensing scheme for pilots and flight engineers established by Part 61 of the CASR
31 The licensing scheme for pilots and flight engineers of registered aircraft is contained in Part 61 of the CASR (regs 61.005(1), 61.007(1)). It is helpful to take commercial pilot licences as an example.
32 First, Subpart 61.B deals with the grant by CASA of flight crew licences (which include pilot licences and flight engineer licences), ratings and endorsements. Of particular relevance, reg 61.175 provides that where CASA grants a flight crew licence to a person, CASA must issue the person a document described as the “licence document” indicating that the person is authorised to exercise the privileges of the flight crew licence and (if applicable) the flight crew rating or endorsement to the person.
33 Secondly, reg 61.190 of the CASR provides that:
It is a condition of a flight crew licence, rating or endorsement that the holder must comply with:
(a) the limitations on the exercise of the privileges of the licence, rating or endorsement set out in this Part; and
(b) the requirements set out in this Part that apply to the licence holder.
(Emphasis added.)
34 Thirdly, the “privileges” conferred on the holder of a commercial pilot licence, which are identified in reg 61.570 in Division 61.I.1, namely, the authority to pilot, as pilot in command, any aircraft in any operation and to co-pilot any aircraft in any operation are expressed as being subject to Subpart 61.E among other things.
35 Fourthly, Subpart 61.E sets out general limitations and authorisations applying to the exercise of the privileges of all pilot licences. For example, reg 61.375 imposes a limitation on the exercise of the privileges of pilot licences, namely, that the holder of a pilot licence is authorised to exercise the privileges of the licence in an aircraft of a particular category only if the holder also holds the aircraft category rating for that category of aircraft.
36 In the fifth place, Subpart 61.L provides for the grant of the ratings and endorsements required to authorise a pilot licence holder to exercise the privileges of the licence in an aircraft of a particular category, class or type (see reg 61.725, CASR). Limitations are also imposed on the exercise of the privileges of particular ratings and endorsements. For example, reg 61.745 provides that the holder of an aircraft class rating is authorised to exercise the privileges of the rating if the holder has a valid flight review for the rating. Further, requirements are specified for the grant of aircraft category or class ratings (see regs 61.730 and 61.750, CASR).
37 Finally, Subpart 61.D sets out general obligations applying to all flight crew licence holders, such as the obligation on a person who holds a pilot licence to keep a flight logbook (reg 61.345).
38 Importantly, the language used in the CASR reflects an apparently deliberate intention to differentiate between a number of concepts, including: the privileges conferred by the flight crew licence or rating/endorsement, limitations on the exercise of those privileges, conditions on the licence, and obligations on flight crew licence holders. In particular, it is apparent that the role played by limitations on a licence, rating or endorsement is to restrict the circumstances in which the privileges conferred by the licence, rating or endorsement can be exercised by the holder. In turn, the obligation on the holder to comply with the limitations on the exercise of the privileges of the licence, rating or endorsement and requirements set out in Part 61 derives from the fact that compliance with them is a condition of the flight crew licence, rating or endorsement by force of reg 61.190. As explained below, the 2019 CAO adopts a similar conceptual framework.
4.2.3 CASA’s powers under the Civil Aviation Act and the CAR to issue a CAO and to issue directions
39 A CAO may be made by CASA under s 98(4A) of the Civil Aviation Act with respect to any matter in relation to which regulations may be made for the purposes of (relevantly) s 28BA. The matters to which the regulation making power in s 98 of the Civil Aviation Act extend include regulations “in relation to safety of air navigation” (ss 98(1)(d)–(f)); and to empower CASA “to issue instruments in relation to … matters affecting the safe navigation and operation … of aircraft” (s 98(5A)).
40 Further, CASA may (subject to a contrary intention in the regulation) issue directions in a CAO in any case where it is empowered or required under the regulations to issue a direction (regs 5(1) and (1A), CAR). Regulation 210A of the CAR also empowers CASA to give directions to a licence holder or aircraft operator on rest periods and maximum flying hours for licence holders. This power to issue directions is particularly important in the present case for reasons I later explain. In addition, reg 215(3) of the CAR enables CASA to give directions to an air operator about the contents of the operations manual which it is required to have.
41 Any directions issued in a CAO relating to a person are taken to have been served on the person when the CAO is registered on the Federal Register of Legislation (reg 5(3), CAR). Further, expressions used in a CAO have the same meaning as in the CAR subject to any contrary intention (reg 5(2), CAR).
4.3 The regime for fatigue risk management created by the 2019 CAO
42 The 2019 CAO came into force on 2 September 2019 and was effectively a remake, with revisions, of the 2013 CAO as is explained in the Explanatory Statement to the 2019 CAO.
43 I note that there was uncertainty as to the precise date on which the 2019 CAO took effect for Qantas under the 2019 CAO transitional provisions. Following the hearing, the active parties filed a submission dated 24 March 2021 (post-hearing joint submission) summarising their agreed position for the reasons given in those submissions, as follows.
a. Although in written submissions before the Tribunal and the Federal Court, the parties assumed that the [2019 CAO] took effect on 2 September 2019 for [Qantas] … and its flight crew members (FCM), it is arguable that through application of the transitional provisions of the 2019 CAO, the date upon which the 2019 CAO took effect for Qantas and its FCM may have been a later date, being 20 December 2019 or, at the latest, 29 February 2020.
b. Regardless, the time at which the 2019 CAO took effect for Qantas and its FCM does not bear on the issues raised by the Applicant’s application for relief under s 39B of the Judiciary Act 1903 (Cth).
44 However, as the active parties submitted, the precise date on which the 2019 CAO took effect for Qantas does not bear upon the issues before me. It is therefore unnecessary to determine that date because, on any view, the 2019 CAO took effect for Qantas and its FCM before the commencement of the FRMS Approval on 1 March 2020 (post-hearing joint submission at [7]; CB at 50).
45 The 2013 CAO allowed air operators to select which set of rules contained in the appendices to that instrument would apply to them according to the type of operations in which they were engaged. Relevantly, an AOC holder had the option of selecting Appendix 7 pursuant to which the AOC holder could, with CASA’s approval, implement a FRMS customised to its operations if, among other things, CASA was satisfied that the FRMS was safe, integrated, data-driven and scientifically informed.
46 The 2019 CAO is a legislative instrument for the purposes of s 8 of the Legislation Act 2003 (Cth) (Legislation Act) and is expressed to have been made under, and to take effect pursuant to, regs 5(1), 210A and 215(3) of the CAR, reg 11.068(1) of the CASR, and ss 28BA(1)(b) and 98(4A) of the Civil Aviation Act: see also Appendix 1, 2019 CAO. Regulation 11.068 in Part 11 of the CASR in particular assumes some significance in this case and relevantly provides that:
(1) For subsection 98(5A) of the [Civil Aviation] 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.
47 An “authorisation” under Part 11 of the CASR includes relevantly a flight crew licence but does not include an AOC: see reg 11.015, CASR, and the definition of a “civil aviation authorisation” in s 3 of the Civil Aviation Act.
48 The Explanatory Statement to the 2019 CAO explained that the purpose of that instrument is to provide, relevantly, AOC holders and flight crew members “with a comprehensive regulatory framework for the more effective management of fatigue risk in aviation operations” and further that:
The new CAO makes use of international standards concerning fatigue, reflects advanced international scientific understanding of fatigue, fatigue risk and fatigue risk management, and is informed by an independent panel of experts appointed by CASA. The new CAO prescribes both specified flight and duty time limitations, minimum rest requirements and fatigue self-management obligations, while also permitting a customised, data-driven fatigue risk management system (FRMS) tailored to an AOC holder’s own operational characteristics and experiences.
As such, the new CAO sets standards for the management of fatigue and fatigue risk. These standards must be complied with to address the safety implications of FCM fatigue in the interests of aviation safety.
(Explanatory Statement to the 2019 CAO at p. 1)
49 The 2019 CAO applies relevantly to an AOC and to “a flight crew member employed by the holder of an AOC”, save for paragraph 16 which applies to all FCM (2019 CAO at [4.1]). In turn, an AOC holder is defined, relevantly, as “the holder of an Air Operator’s Certificate issued under Part III, Division 2 of the [Civil Aviation] Act”, while a “flight crew member” or “FCM” means “a crew member who is a pilot or flight engineer assigned to carry out duties essential to the operation of an aircraft during flight time” (2019 CAO at [6.1]; Part 1 of the Dictionary, CAR).
50 Part 1 of the 2019 CAO, headed “General”, provides that:
4.3 Subject to paragraph 4.4, this CAO sets out:
(a) for paragraph 28BA (1) (b) of the [Civil Aviation] Act — conditions on each AOC mentioned in subparagraphs 4.1 (a) and (b); and
…
(c) for subregulation 11.068 (1) of CASR — conditions on the flight crew licence of each flight crew member mentioned in subparagraphs 4.1 (d) and (e).
4.4 The condition set out in paragraph 16.1 applies to the holder of a flight crew licence whether or not the person is employed by the holder of an AOC or a Part 141 or Part 142 certificate mentioned in paragraph 4.1 or 4.2.
Note Under regulation 11.077 of CASR, it is an offence for a person holding a flight crew licence to contravene a condition of the licence.
51 A “flight crew licence” is defined in the 2019 CAO as “(a) a pilot licence; or (b) a flight engineer licence; or (c) a glider pilot licence” (2019 CAO at [6] and reg 61.010, CASR).
52 It is convenient first to refer to the condition specified by paragraph 16.1 of the 2019 CAO which provides that:
For subregulation 11.068 (1) of CASR, it is a condition on each flight crew licence that the licence holder must not begin to carry out any task for a flight if, due to fatigue, the FCM is, or is likely to be, unfit to perform a task that the FCM must perform during the flight.
53 Secondly, Part 2 of the 2019 CAO entitled “Conditions” specifies general conditions on AOCs and the flight crew licence of an AOC holder’s FCM at [8] and [9] respectively. These paragraphs set out the following:
8. General condition on Air Operators’ Certificates
Each AOC is subject to the condition that the AOC holder must:
(a) comply with each requirement for the AOC holder as set out in this CAO; and
(b) comply with the limits and requirement for an FCM as provided for by each Appendix of this CAO which the AOC holder applies to the FCM; and
(c) ensure that each of the AOC holder’s FCMs, when acting as such, complies with each requirement imposed by this CAO on flight crew licences.
9. General conditions on flight crew licences
9.1 The flight crew licence of an AOC holder’s FCM is subject to the condition that the FCM must comply with each limit and requirement imposed on the FCM by this CAO.
9.2 The flight crew licence of an FCM in a private operation is subject to the condition that the FCM must comply with the requirement imposed on the FCM by paragraph 16.1 of this CAO.
Note Under regulation 11.077 of CASR, breach of a flight crew licence condition is a strict liability offence.
54 As CASA and Qantas submit, paragraph 9.1 is plainly a condition imposed by the 2019 CAO, which is a legislative instrument issued under reg 11.068(1) of the CASR. Paragraph 9.1 is therefore taken to be a condition of every flight crew licence of an AOC holder’s FCM by virtue of reg 11.068(3) and took effect for each flight crew licence on the day prescribed by reg 11.068(4).
55 It is clear from the notation to paragraph 14.2 of the 2019 CAO that the applicable limits and requirements for a FCM for the purposes of paragraphs 8(b) and 9.1 are determined in accordance with the Appendices to the 2019 CAO selected by the AOC holder. The note to paragraph 14.2 further clarifies that the reference to “limit” in the context of the 2019 CAO is a reference to a time limit, such as flight time limits and off-duty period limits, i.e. either “a maximum quantity of time that is not to be exceeded except in accordance with this CAO, or a minimum quantity of time that is not to be reduced except in accordance with this CAO”.
56 Thirdly, paragraph 10.1 of Part 3 of the 2019 CAO titled “Limits and Requirements” makes provision for ten different fatigue risk management regimes that apply to different kinds of operations. Specifically, paragraph 10.1 of the 2019 CAO provides, relevantly, that for an aircraft operation mentioned in column 1 of Table 10.1, an AOC holder must:
(a) choose at least 1 of the Appendices in column 2 of the Table that corresponds to the operation; and
(b) comply with the limits and requirements for FCMs mentioned in whichever 1 or more of the Appendices in column 2 of the Table the holder chooses that corresponds to the operation; and
(c) for each kind of operation conducted by the holder — specify in the operations manual the Appendix or Appendices with which the holder has chosen to comply.
57 Table 10.1 (entitled “Limits and requirements for operations”) lists ten Appendices from which an AOC holder may choose.
58 Fourthly, the AOC holder’s choice of applicable appendix or appendices ties in with its obligations with respect to the contents of the AOC holder’s operations manual. Thus:
(1) paragraph 14.3 of the 2019 CAO requires the AOC holder to include in the operations manual “the limits arising from compliance with each applicable Appendix” of the 2019 CAO that the holder has chosen to apply to an FCM;
(2) clause 2.6 of Appendix 7 directs that for the purposes of paragraph 215(3)(a) of the CAR, an AOC holder’s FRMS must form part of the AOC holder’s operations manual, which an operator is required to provide to its operations personnel under regs 215(1) and (6) of the CAR; and
(3) reg 215(9) provides that each member of the operations personnel shall comply with all of the instructions in the operations manual insofar as they relate to her or his duties or activities.
59 Fifthly, with respect to the appendices listed in Table 10.1, Appendices 1–4, 4A, 4B, 5, 5A, and 6 deal with such matters as sleep opportunity before a flight duty period, limits on cumulative flight time, limits on cumulative flight duty time, off-duty periods, limits on infringing the window of circadian low and early starts, and maximum durations of a flight duty period of flight time that must not be exceeded. Appendix 7 to the 2019 CAO, titled “Fatigue Risk Management System (FRMS)”, applies to any operation and extends a less prescriptive option to an AOC holder but, in contrast to the other appendices, requires that the AOC holder put forward a FRMS to CASA for approval. Furthermore, while the other appendices prescribe the limits and requirements for the operation in question, Appendix 7 prescribes the detailed elements which a FRMS must contain before it can be approved.
4.4 Appendix 7 to the 2019 CAO: Trial and Full FRMS
60 A FRMS is defined in the 2019 CAO as follows:
fatigue risk management system (or FRMS) means a comprehensive system for managing fatigue-related risks that:
(a) is appropriate for the size, nature and complexity of the AOC holder’s operations; and
(b) includes all of the elements set out in Appendix 7; and
(c) is approved for implementation by CASA.
61 In turn, Appendix 7 provides that a trial or full FRMS implementation approval must include CASA approval for each of the following elements of the FRMS (at clause 1.2):
(a) the policy and objectives, and related documentation, in accordance with clause 2;
(b) the practical operating procedures in accordance with clause 3;
(c) the hazard identification, risk assessment and mitigation procedures in accordance with clause 4;
(d) the safety assurance procedures in accordance with clause 5;
(e) the safety promotion procedures in accordance with clause 6;
(f) the change management procedures in accordance with clause 7.
62 An AOC holder may apply to CASA for a trial FRMS implementation approval or a full FRMS implementation approval under clause 1.1 of Appendix 7, for all or part of its operations. Before CASA may issue a trial FRMS implementation approval, clause 1.4 of Appendix 7 provides that:
… CASA must be satisfied that the AOC holder’s FRMS:
(a) comprises all of the elements mentioned in subclause 1.2; and
(b) is a safe, integrated, data-driven, system which appears to be reasonably capable of continuously and effectively monitoring and managing fatigue-related safety risks using scientific principles and knowledge, and operational experience; and
(c) will enable the AOC holder to assess the extent to which FCMs and other relevant personnel perform at levels of alertness sufficient to ensure the safety of operations.
63 After a trial FRMS has been implemented, cl 9.1 of Appendix 7 provides that CASA may issue an AOC holder with a full FRMS implementation approval if certain conditions are met. Clause 9.1 of Appendix 7 provides:
CASA may, on written application, issue an AOC holder with a full FRMS implementation approval, if the AOC holder:
(a) has held a trial FRMS implementation approval for at least 12 consecutive months; and
(b) satisfies CASA, through relevant data and reports, that the FRMS:
(i) is demonstrably delivering the safety outcomes expected when the trial FRMS implementation approval was given; and
(ii) is capable of delivering continuous improvement in the delivery of safety outcomes.
64 The Explanatory Statement to the 2019 CAO explained the regime for obtaining approval under Appendix 7 as follows:
A tenth regime is available (an FRMS) which is somewhat less prescriptive than any of the other 9 but which, to be approved and effective, requires, strict, scientific and tailored use of individualised fatigue risk management data for relevant FCMs, within the framework of an international standard. A decision refusing to approve an FRMS, or imposing a condition on an approval, would be subject to merits review before the Administrative Appeals Tribunal under section 31 of the Civil Aviation Act 1988 or regulation 201.004 (Table 201.004, item 1) of CASR.
(Explanatory Statement to the 2019 CAO at p. 3.)
65 While the terms of the 2019 CAO Explanatory Statement cannot logically bear on the construction of s 31(1)(b) of the Civil Aviation Act, I note that the Explanatory Statement does not refer to an approval of an FRMS being subject to merits review, but only to a decision to refuse approval or to impose a condition on any such approval being reviewable by the Tribunal.
66 Importantly, for reasons I later explain, approval of a trial or full FRMS does not result in a static system for managing fatigue-related risks. As Qantas submitted, dynamism is central to an FRMS; that is, in the sense of the capacity to respond nimbly to new knowledge, learned experience, and international requirements, and to fine-tune limits and requirements as necessary. No less would be expected given that an FRMS is intended to be “a safe, integrated, data-driven, system” which is reasonably capable of “continuously and effectively monitoring and managing fatigue-related safety risks using scientific principles and knowledge, and operational experience” (clauses 1.4(b) and 1.5(b), 2019 CAO). Thus, Appendix 7 stipulates the following requirements for the relevant AOC holder:
(1) to identify “on an ongoing basis” fatigue-related safety hazards and their consequential risks (cl 3.1(b));
(2) to continuously record and monitor and regularly assess fatigue-related safety hazards, relevant remedial actions, and the effectiveness of remedial actions (cl 3.1(d)); and
(3) to provide for the “continuous improvement” of the FRMS (see, e.g., cls 2.3(e)(iii), 3.1(e)).
67 As Qantas also submits, that dynamism is managed through the change management procedures in cl 7 which, by virtue of cl 1.2(f) of Appendix 7, are a mandatory element of the FRMS; as well as, in this case, the conditions contained in Qantas’ AOC (see at [17] above). Specifically, under cl 7.4 of Appendix 7 an AOC holder must comply with any written direction by CASA to the AOC holder to amend, change or modify the FRMS (including practices and documents). Further, an AOC holder may make changes that are not “significant” to any element of the FRMS provided that those amendments comply with the change management procedures and CASA is subsequently notified in writing (cl 7.7 of Appendix 7), whilst any “significant change” to be made must first be approved in writing by CASA (cls 7.5 of Appendix 7). A “significant change” for the purposes of cl 7 is defined in cl 7.1 to mean any increase to the maximum values for each FCM for flight times, flight duty periods, or duty periods (cl 3.2(a)), any decrease to the minimum values for each FCM for off-duty periods (cl 3.2(b)), and “any other change to any element of the FRMS that does not maintain or improve, or is not likely to maintain or improve, aviation safety”.
68 As is apparent from this scheme, an AOC holder itself can change the limits and requirements in the FRMS without CASA’s approval provided that: (1) the change is not a “significant change” as defined; (2) CASA is notified in writing after the fact; and (3) under the conditions imposed on Qantas by its AOC, it ensures any amendment is made available to Qantas’ relevant personnel before it takes effect for any FCM (Schedule 1 to the FRMS Approval). Indeed, subject to compliance with cl 7 of Appendix 7 where applicable and any other conditions, cl 3.4 of Appendix 7 imposes an obligation on the AOC holder to amend the FRMS to ensure that the minimum and maximum values required by cl 3.2 (as discussed above) are acceptable where that AOC holder acquires information indicating that those maximum or minimum values are too high or too low respectively.
5.1 Relevant principles of statutory construction
69 The relevant principles of statutory construction were recently summarised by the Full Court in Vincentia MC Pharmacy Pty Ltd v Australian Community Pharmacy Authority [2020] FCAFC 163; (2020) 280 FCR 397 (Vincentia) as follows:
46 … In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky), McHugh, Gummow, Kirby and Hayne JJ explained that:
69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
47 The importance of starting with the statutory context and text was recently emphasised by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 in the following passage:
14. The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose [citing Project Blue Sky with approval]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
48 Context “in its widest sense”, as referred to in this passage, includes “such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy”: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (cited with approval in SZTAL at [14]). To have regard to context in this sense, as integral to the process of statutory construction irrespective of whether ambiguity or inconsistency exists in the literal text, accords with the mandate in s 15AA of the Acts Interpretation Act that the interpretation which best gives effect to the legislative purpose must be preferred to any other interpretation: Mills v Meeking [1990] HCA 6 (1990) 169 CLR 214 at 235 (Dawson J). As a result, as Dawson J also explained with respect to Victoria’s equivalent to s 15AA, the approach required by interpretive provisions of this kind “allows a court to consider the purposes of an Act in determining whether there is more than one possible construction” (ibid) … That said, it must also be borne steadily in mind that, as Hayne, Heydon, Crennan and Kiefel JJ cautioned in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27, “[h]istorical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention”.
(Emphasis in original.)
70 The issues of construction in this proceeding are not limited to the Civil Aviation Act but, as earlier indicated, also arise with respect to the 2019 CAO. In this regard, first, the 2019 CAO is a legislative instrument for the purposes of the Legislation Act and, as such, must be construed in accordance with that Act and the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act): Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 114 ALD 1 at [15] (the Court); Vincentia at [43] (the Court). Specifically, s 13(1) of the Legislation Act provides that:
(1) If enabling legislation confers on a person the power to make a legislative instrument or notifiable instrument, then, unless the contrary intention appears:
(a) the Acts Interpretation Act 1901 applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and
(b) expressions used in any instrument so made have the same meaning as in the enabling legislation as in force from time to time; and
(c) any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the person to make the instrument.
71 There was no suggestion that any such contrary intention existed for the purposes of construing the relevant regulations and 2019 CAO.
72 Secondly, the 2019 CAO, being subordinate or delegated legislation, is otherwise to be construed in accordance with ordinary principles of statutory construction: Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 at [19] (the Court). Thus, as the Full Court held in Vincentia at [45], this requires that the 2019 CAO be placed in its statutory context including, relevantly, the Civil Action Act, CAR and the CASR pursuant to which it was made, in line with s 13(1)(c) of the Legislation Act.
5.2 Submissions for the Pilots Association in support of the Tribunal’s preliminary decision
73 The Pilots Association submitted that the Tribunal correctly found that it had jurisdiction to entertain the application for review under s 31(1)(b) of the Civil Aviation Act. The Pilots Association’s submissions (PAS) may be summarised as follows.
(1) The legal meaning of the statutory text usually accords with its ordinary meaning: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [78]. The word “condition” in s 31(1)(b) should be given its ordinary meaning, namely, as contained in the Shorter Oxford English Dictionary: “A thing demanded or required as a prerequisite to the granting or performance of something” (PAS at [56]–[57]).
(2) The argument put by CASA “attempts to transmogrify the effect of the Applicant’s decision from a condition into mere ‘tasks that may need to be undertaken by a FCM of an air operator, at any given time, in order to fulfil both his or her duties…’” (quoting AS at [57], emphasis added), contrary to the words of paragraph 9.1 of the 2019 CAO). It involves a constructional fallacy in focusing upon the process by which conditions are imposed, rather than the outcome of that process (PAS at [52]–[55]).
(3) Even if, however, the obligations imposed on FCM can be described as “tasks” in line with the submissions made by CASA and Qantas, “on any reading, they would be ‘tasks’ that are ‘demanded or required as a prerequisite’ to operating aircraft. In that sense, there is no escaping the conclusion such ‘tasks’ amount to a condition by reference to s 9.1 of the 2019 [CAO], as authorised by [CASA’s] decision.” (PAS at [57]). Regardless of the process by which a condition is imposed, “if, at a functional level, a condition is imposed, a person affected by a decision may seek review by the Tribunal”:
Such is the clear and unambiguous language of s 31(1)(b) of the [Civil Aviation] Act. There are no limiting words to be found in s 31(1)(b) of the [Civil Aviation] Act about how the imposition or variation was arrived at. There is no straining of language to say that s 31(1)(b) is not aimed at outcomes, as distinct from the processes that led to such outcomes. It may be necessary, as was correctly recognised by the Tribunal, to survey the processes which produced the outcome. But that merely entails an understanding of the substantive provisions which work to produce the result. In that regard, the Tribunal’s conclusion was consistent with what s 31(1)(b) of the [Civil Aviation] Act requires and the logical structure it presupposes.
(PAS at [58].)
(4) A construction of the 2019 CAO which would promote the ability of pilots to seek a full merits review in relation to the aircraft they operate would best achieve the express purpose of the Civil Aviation Act to promote the safety of civil aviation and must therefore be preferred (s 15AA, Acts Interpretation Act). This is because “assuming that ‘conditions’ are shoehorned into the notion that they are no more than ‘tasks’, the very persons who operate the aircraft, and who are subject to fatigue risk management systems, would have no right to be heard on a full merits review”. It is to be noted that the 2019 CAO does not contain any obligation to consult with FCM in relation to FRMS applications (PAS at [59]).
(5) The same “mode of construction” applies to s 31(1)(b) of the Civil Aviation Act given the beneficial character of the legislation. Specifically:
In determining whether [CASA’s] decision engages s 31(1)(b) of the [Civil Aviation] Act through the operation of s 9.1 of the 2019 [CAO], the core notion of whether (and how) a condition was imposed on the licence assumes primacy. The Tribunal correctly looked at how that condition was arrived at. It was activated when Qantas applied for an “authorisation”, and then given effect when the authorisation was granted, thus engaging s 9.1 of the 2019 [CAO].
(PAS at [60], emphasis added.)
(6) There is no suggestion by CASA or Qantas that FCM need not comply with any limit or requirement in the Qantas FRMS. The limits and requirements imposed on FCM by way of the AOC holder’s flight crew licence should thus be “‘taken to be’ conditions for an ‘authorisation [that was] granted’” (PAS at [61]).
(7) The suggestion that there must be a direct imposition of a condition overlooks the terms of s 9.1 of the 2019 CAO. Further:
The constructional argument that the condition must be ‘contained in’ the licence provides no support for the contention that the condition was not imposed in the circumstances of this case, for the deeming provision in reg 11.068 places it beyond debate that the condition is inserted, or otherwise attached to, the licence upon the happening of one or more events.
(PAS at [63].)
(8) Where an AOC holder elects to apply for an FRMS pursuant to Appendix 7 to the 2019 CAO, no conditions are imposed upon a flight crew licence unless and until CASA has granted approval to authorise an AOC to adopt a FRMS. On that basis, the content of the FRMS as approved by CASA are conditions that apply to the licence (PAS at [31]).
5.3 The Tribunal erred in finding that it had jurisdiction to review the FRMS Approval
74 Contrary to the Pilots Association’s submissions, in my view the Tribunal, with respect, clearly erred in finding that the approval by CASA of the Qantas FRMS constituted the imposition of a “condition” on the flight crew licences of Qantas’ pilots for the purposes of s 31(1)(b) of the Civil Aviation Act.
75 Rather, as Qantas and CASA submitted:
(1) Section 31(1)(b) of the Civil Aviation Act confers a right of merits review only where a condition is imposed directly on (relevantly) a licence or where such a condition is varied. The provision is not enlivened where a condition on a licence remains the same but, in practical terms, there is an effect on the person’s obligations in terms of how they may comply with the condition (Qantas Submissions (QS) at [27(a)], [28], [40]; AS at [42]).
(2) Clause 9.1 of Appendix 7 to the 2019 CAO, pursuant to which the FRMS Approval was given, does not grant a power to impose or vary a condition of a licence or other authorisation for the purposes of s 31(1)(b) of the Civil Aviation Act (QS at [27(b)], [42]; see also AS at [44]).
(3) The relevant condition on the licence of flight crew members is paragraph 9.1 of the 2019 CAO requiring that “[t]he flight crew licence of an AOC holder’s FCM is subject to the condition that the FCM must comply with each limit and requirement imposed on the FCM by this CAO”. That condition was neither imposed on flight crew licences, nor varied by, the FRMS Approval. The fact that, as a practical matter, the content of the “limit[s] and requirement[s]” changed by reason of the FRMS Approval by CASA does not mean that the Qantas FRMS imposed or varied a “condition” on the flight crew licence of Qantas’ FCMs for the purposes of s 31(1)(b) of the Civil Aviation Act (QS at [27(b)], [43]–[45]; AS at [45]–[47]).
76 Turning to my reasons for so finding, I have earlier set out the critical passages from the Tribunal’s reasons at [20] above. As CASA and Qantas submit, that line of reasoning was premised on the assumption that, where an AOC holder has chosen Appendix 7, the obligation to observe the limits and requirements in a full or trial FRMS is not “imposed on the FCM by this CAO” for the purposes of paragraph 9.1 of the 2019 CAO (the Premise) (see AS at [52]; QS at [26], [46]). Rather, in circumstances where the AOC holder has chosen to comply with the operational regime set out under Appendix 7, the Tribunal considered that the limits and requirements for FCMs were “imposed” on the flight crew licence (or AOC) only if and when CASA approved the FRMS submitted to it. By contrast, the Tribunal considered that the “obligations” in Appendices 1 to 6 were “imposed” by the 2019 CAO itself (TR at [30]). This Premise appears then to have led the Tribunal to conflate the “limits and requirements” set out in an approved trial or full FRMS (with which FCM must comply as an existing condition of their licence by force of [9.1] of the 2019 CAO), with the “conditions” applicable to their flight crew licence in order to explain the binding quality of those “limits and requirements”. Thus, as CASA submits (AS at [53]), “it appears that the Tribunal has found that it is the administrative ‘approval’ by CASA that has an ‘effect’ of imposing a condition on both the AOC of such an air operator and the licence of a FCM of that AOC holder.” The submissions by the Pilots Association equally assume that the binding quality of the limits and requirements in the Qantas FRMS stems from CASA’s approval of the FRMS and therefore are underpinned by the same premise.
77 With respect, the Premise and the reasoning which follows are flawed, for the reasons which I explain below.
78 First, the Pilots Association’s submissions focus upon the dictionary meaning of “condition” to contend that the Tribunal correctly found that the question of whether or not the FRMS Approval imposed a “condition” for the purposes of s 31(1) of the Civil Aviation Act turned upon its effect, namely, what pilots were required to do as a prerequisite to operating an aircraft. However, as Leeming JA explained in TAL Life Ltd v Shuetrim [2016] NSWCA 68; (2016) 91 NSWLR 439 at [80], “[d]ictionary definitions may assist in identifying the range of possible meanings a word may bear in various contexts, but will not assist in ascertaining the precise meaning the word bears in a particular context”: see also Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [23] (the Court). Here it is the composite phrase “the imposition or variation of a condition … contained in such a certificate, permission, permit or licence”, being a certificate, permission, permit, or licence “granted or issued under this Act or the regulations”, to which the question of construction must be directed (see s 31(1)(b) read with subsection (1)(a), Civil Aviation Act). That question, in turn, must be answered in the context of Civil Aviation Act, including in particular the provision made by that Act for conditions to be imposed or varied.
79 Secondly, while the expressed object of the Civil Aviation Act is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, it does not follow that an expansive construction of the Tribunal’s jurisdiction to engage in merits review best promotes the safety of civil aviation contrary to the Pilots Association’s submission. As Qantas contends, that assumption has no statutory basis. Rather, as O’Connor J stated (as then President of the Tribunal), in Re Surf Air & Civil Aviation (1991) 22 ALD 118 (Re Surf) at [18]:
There is no doubt that the definition of ‘reviewable decision’ in s 31 is designed to limit the Tribunal jurisdiction. Not all decisions made under the Civil Aviation Act or regulations are reviewable by this Tribunal.
(Emphasis added.)
80 Thus in Re Surf, O’Connor J rejected the proposition that a decision in relation to an approval of a person as a chief pilot fell within s 31(1)(b) on the basis that it was not a condition or authorisation “contained in” a certificate, permission, permit or licence. Rather he found that the approval “is … a separate instrument, although it may well have a practical effect on the holder of a licence or certificate in so far as flight operations are not permitted unless a properly approved person is appointed as chief pilot” (Re Surf at [19]). Nor, while accepting that an approval may fall within a permit or permission, did his Honour consider that the decision to cancel the approval in Re Surf was reviewable. This was because the cancellation was made by an order as opposed to an administrative decision and was therefore outside the definition of reviewable decision in s 31(1) (ibid).
81 Thus, while the Tribunal (as Qantas pointed out) has adopted a broad construction of an authority granted or issued “under this Act or the regulations” (emphasis added) in s 31(1)(a) of the Civil Aviation Act in decisions such as Cole v Civil Aviation Safety Authority (2004) 86 ALD 247 at [163]–[174], the same considerations do not apply with respect to the relevant words in s 31(1)(b), being “the imposition or variation of a condition” contained in (relevantly) a licence, which are words of limitation. In short, as O’Connor J also correctly observed in Re Young and Telstra Corporation (1993) 32 ALD 307 at 310 (in distinguishing the merits review regime in the Civil Aviation Act from that created with respect to decisions affecting compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth)):
The definition of “reviewable decision” in s 31(1) of the Civil Aviation Act specified precisely the acts that came within it and contained no discretionary elements.
(Emphasis added.)
82 Equally and for the same reasons, the characterisation of the Civil Aviation Act as beneficial legislation by the Pilots Association does not advance the construction for which the Pilots Association contends.
83 Thirdly, it has been seen that the Civil Aviation Act makes express provision for conditions to be imposed on certificates and other authorisations by a number of different mechanisms in furtherance of its main object for maintaining, enhancing and promoting the safety of civil aviation. Thus the Civil Aviation Act itself expressly imposes a number of “conditions”, as well as providing for “conditions” to be specified in regulations or other subordinate legislation, or imposed or varied by CASA: see s 28BA(1) of the Civil Aviation Act quoted at [29] above.
84 Furthermore, those provisions of the Civil Aviation Act which confer power on CASA to impose conditions on a certificate, permission, permit, or licence granted or issued under the Civil Aviation Act, or to proscribe an action otherwise than in accordance with conditions, consistently refer to “any conditions specified in” the certificate, licence, permission, or permit granted by CASA. The following provisions of the Civil Aviation Act are illustrative, as submitted by Qantas (see QS at [36]).
(1) Section 26(1) prohibits the arrival or departure of international flights “except with the permission of CASA and in accordance with any conditions to which the permission is subject”. Section 26(4)(b) in turn provides that a permission granted under s 26 “is subject to … any conditions specified in the permission” (emphasis added).
(2) Section 27A(1) makes provision for a person to apply to CASA for a permission to operate a foreign registered aircraft without an AOC on regulated domestic flights. A permission granted under that section “has effect subject to … any conditions … specified by CASA in the permission” (s 27A(4), emphasis added), and CASA may at any time by written notice “impose further conditions” if necessary in the interests of the safety of air navigation (s 27A(5)).
(3) Section 28BB(1) provides that: “CASA may: (a) at the time of issuing an AOC, impose conditions by specifying them in the AOC; and (b) at any time after the issue of an AOC, give a written notice to the holder of the AOC, imposing conditions, or further conditions, on the AOC” (emphasis added).
(See also, e.g., ss 19(2)(c), 23, 25(2), (3) and (5)(b), 28BB(2), and 30EF(3), Civil Aviation Act.)
85 The language used in these provisions therefore makes it clear that the intention is that any conditions imposed by CASA need to be specified as such in the relevant certificate or other authorisation, or in a written notice subsequently given to the holder of the authorisation.
86 Similarly, as Qantas submits (QS at [37]), references in the Civil Aviation Act to CASA “vary[ing]” conditions reflect a concern with the alteration of the formal conditions of the authorisation in question. Thus for example:
(1) Sections 25(6)(b) and 26(5)(b) provide that CASA must not “vary a condition specified” in the relevant permission except to ensure compliance with the safety rules.
(2) Section 27A(5), read with s 27A(4), provides that CASA may at any time, by written notice given to the holder of the permission, “vary the conditions” specified in the relevant permission in the interests of the safety of air navigation.
(3) Section 28BB(2) provides that “CASA may at any time give a written notice to the holder of an AOC, varying any of the conditions of the AOC that were imposed by CASA”.
87 These features of the scheme established by the Civil Aviation Act strongly suggest that the conferral of jurisdiction on the Tribunal under s 31(1) to review a “decision” to impose or vary “a condition … contained in” an authorisation is intended to refer to a decision by CASA to “impose” or “vary” a “condition” that has been “specified in” the authorisation or imposed by CASA “on” the authorisation by a written notice given after the grant of the authorisation. That construction of s 31(1), in other words, would be consistent with the language and purpose of the Civil Aviation Act viewed as a whole. This construction also receives support from the general presumption that a word or phrase bears a consistent meaning in an enactment, as Qantas submits. While that presumption has been described as “readily rebutted”, in this case the construction which I favour aligns with the statutory scheme and context: Lygon Nominees Pty Ltd v Commissioner of State Revenue [2007] VSCA 140 at [31] (Redlich JA (Ashley JA and Bell AJA agreeing at [1] and [92] respectively)) and the authorities there cited.
88 Furthermore, the consistent use of the terminology of “condition” to identify and describe the conditions to which an authorisation is subject, and where the condition is imposed by CASA, the consistent reference to the conditions being specified in the relevant authorisation or the subject of written notice from CASA, reflect the need for complete clarity about the conditions to which the authorisation in question is subject. The need for that clarity flows, among other things, from the potential seriousness of breaching a condition for the authorisation holder, including cancellation or suspension of the authorisation (see, e.g. ss 26(6), 28BA(3), Civil Aviation Act). Furthermore, air safety is not an area where it is likely that Parliament intended that there might be any doubt about what conditions attach to an authorisation given under or pursuant to the Civil Aviation Act. That need for clarity is not consistent with a broad construction of the term “condition” in s 31(1) of the Civil Aviation Act that would extend to limits or requirements which are not specified as conditions in an authorisation but which, in practical terms, may have an effect to varying degrees on the manner in which the authorisation holder complies with specified conditions.
89 Fourthly, paragraph 10.1 of Part 3 of the 2019 CAO directs the AOC holder to make a choice of at least one of the appendices which corresponds to the relevant aircraft operation. Similarly, paragraph 10.2 of Part 3 of the 2019 CAO directs each FCM of an AOC holder to “comply with the limits and requirements mentioned in the Appendix or Appendices which the AOC holder has chosen to comply with under paragraph 10.1”. Those Appendices in turn include Appendix 7. As such, contrary to the Premise underpinning the Tribunal’s construction, it can be said as a matter of ordinary language that, where the AOC holder has chosen to comply with Appendix 7, the limits and requirements mentioned in the FRMS approved by CASA are nonetheless “imposed on the FCM by [the 2019] CAO” and not by a later decision of CASA to approve the FRMS (s 9.1, 2019 CAO).
90 Furthermore, having regard to the content of each appendix to the 2019 CAO, the subject matter of the choice which paragraph 10.1 directs be made by an AOC holder aligns with the matters on which CASA is empowered to issue directions under reg 210A of the CAR, namely:
(1) CASA may, in writing, give directions to a licence holder or an aircraft operator about any of the following:
(a) the number of hours that a licence holder may fly in any period as a member of the flight crew of an aircraft;
(b) the length of each tour of duty undertaken by a licence holder;
(c) the length of reserve time for a licence holder;
(d) the rest periods that must be taken by a licence holder;
(e) the circumstances in which a licence holder must not:
(i) fly as a member of the flight crew of an aircraft; or
(ii) perform any other duty associated with his or her employment.
(2) CASA may, in writing, give directions to an aircraft operator about the circumstances in which an operator must not require a licence holder:
(a) to fly as a member of the flight crew of an aircraft; or
(b) perform any other duty associated with the holder’s employment.
91 A “licence holder” is defined in reg 210A(5) of the CAR as including the holder of a flight crew licence, rating or endorsement. In addition, reg 210A(5) provides that:
reserve time means a period during which a flight crew member is required by an operator to hold himself or herself available for a tour of duty.
rest period means a period of time during which a flight crew member is relieved by an operator of all duties associated with his or her employment.
92 In this regard, it will also be recalled that CASA may issue directions in a CAO or otherwise in writing (regs 5(1) and (1A), CAR). That is plainly what CASA has done in the 2019 CAO in requiring an AOC holder to make the choice contained in paragraph 10.1 of the 2019 CAO and in requiring by paragraph 10.2 that the FCM of the AOC holder comply with the limits and requirements flowing from that choice. It is therefore no coincidence that the 2019 CAO expressly cites regulations 5(1) and 210A among the sources of legislative power on the basis of which the 2019 CAO was issued. The important point, in other words, is that CASA’s power to impose these requirements via the 2019 CAO is found in the power to issue directions under reg 210A, as opposed to the power to impose conditions.
93 Fifthly, the FRMS Approval under Appendix 7 was a necessary step under the 2019 CAO to give effect to Qantas’ choice under paragraph 10.1 of the 2019 CAO, as the AOC holder, to comply with Appendix 7. In other words, as CASA submitted (AS at [59]), its approval of the Qantas FRMS completed a process under the 2019 CAO enabling Qantas to implement a particular system affecting the safety of its air operations under an election provided for in the CAO. Plainly CASA could not, by allowing Qantas to implement the regime of its election or otherwise, “impose” a condition on the flight crew licences issued by CASA under the Civil Aviation Act. Nor is the power conferred on CASA to approve an FRMS under cl 9.1 of Appendix 7 a source of power to impose conditions on a flight crew licence. Rather, as CASA submits, there are only five sources of power by which CASA may impose or vary a condition on a flight crew licence following its issue, namely:
a. administrative decision made under subregulation 11.067(1A) of the CASR following the licence holder receiving written notice of the proposed condition and having an opportunity to make a submission in relation to the proposed condition – subregulations 11.067(2) and (3);
b. legislative instrument made in the exercise of the power contained in subregulation 11.068(1) of the CASR;
c. administrative decision made under subregulation 11.125(3) of the CASR upon the application of the licence holder for the variation of the licence (including imposing a condition on the licence) [see also reg 11.056 of the CASR regarding the grant of authorisations subject to conditions];
d. administrative decision made in the exercise of CASA's powers under subregulation 269(1) of the CAR to vary, suspend or cancel a licence upon the grounds set out in subparagraphs (a)-[(e)] [after service of a show cause notice and opportunity to make submissions]; or
e. administrative decision made in the exercise of CASA's powers under subregulation 99.415(1) of the CASR to vary, suspend or cancel a licence if CASA determines that the licence holder has contravened the requirements of the drug and alcohol testing regime established under CASR Part 99 [after service of a show cause notice and opportunity to make submissions].
(See AS at [24].)
94 The FRMS Approval does not engage any of these sources of power. The FRMS Approval Instrument contains only an approval by CASA for Qantas to manage flight crew fatigue in accordance with its own FRMS following its election to comply with the applicable limits and requirements set out in Appendix 7 to the 2019 CAO. The FRMS Approval instrument does not impose or purport to impose or vary any condition in any flight crew licence. The condition in paragraph 9.1 of the 2019 CAO that FCM comply with each limit and requirement imposed on them by that CAO was imposed on flight crew licences from or after the commencement of the 2019 CAO on 2 September 2019 (see reg 11.068(4), CASR), and that condition remained unaltered by the FRMS Approval some 5 months later. As CASA submitted :
Put another way, it is the provisions of the regulatory framework, not the terms of the FRMS approval, that impose enforceable obligations on the FCMs of Qantas to comply with the limits and requirements mentioned in Appendix 7 following CASA’s administrative approval of the FRMS established by Qantas. That those limits or requirements may vary over time or may give rise to the need for different tasks to be undertaken by FCMs in different ways depending on the scope or nature of particular air operations (or changes to the FRMS Manual and/or Operations Manual of Qantas) does not affect the condition imposed on the licence of each FCM by reason of paragraph 9.1 of the 2019 CAO.
(AS at [47].)
95 Sixthly, it will be recalled that Part 61 of the CASR creating the licensing scheme for pilots and flight engineers employs a careful use of language to differentiate between various concepts, including conditions and limitations: see above at [32]–[38]. In particular, it is apparent under that scheme that the obligation to comply with limitations on a flight crew licence (which effectively define the circumstances in which the privileges conferred by the licence can be exercised) and applicable requirements as set out in Part 61 of the CASR is imposed by the condition imposed on all flight crew licences by reg 61.190 of the CASR.
96 The 2019 CAO employs a similar scheme. Thus paragraph 9.1 of the 2019 CAO imposes a “condition” on the flight crew licence of an AOC holder’s FCM to comply with each “limit and requirement” imposed on the FCM by that CAO. A careful distinction between those concepts is also evident in the other sub-paragraphs of paragraphs 8 and 9, noting that paragraphs 9.2 and 16 impose a requirement that consists of a specific condition imposed on the flight crew licences of FCM conducting flights as a private operation.
97 In this regard, it will be recalled that s 13(1)(b) of the Legislation Act provides that expressions used in a legislative instrument made under legislation conferring power to make the legislative instrument have the same meaning as that in the enabling legislation as in force from time to time, subject to a contrary intention. Such is the effect of reg 5(2) of the CAR, which clarifies that expressions used in CAOs have the same meanings as those in the CAR unless the contrary intention appears. There is also no basis on which to find that the word “condition” in the 2019 CAO was used in any different sense from the sense in which it is used in the Civil Aviation Act or the CASR. To the contrary, in my view the apparent legislative intention was that the term “condition” is used in the CASR and the 2019 CAO in the same sense as that in which it is used in the Civil Aviation Act, relevantly: a condition specified in the Act or subordinate legislation and specified as such; or a condition, imposed or varied by CASA in the exercise of executive power, which is specified in the authorisation or subsequent written notice. Indeed, that intention could not have been clearer. However, that does not mean that a limitation or requirement cannot be a specified condition as is the case with respect to paragraph 16 of the 2019 CAO.
98 In the seventh place, in my view this construction of the 2019 CAO best promotes the dynamism which is a central feature of a FRMS. Specifically, if the distinction between a “condition” and a “limit and requirement” is conflated, it logically follows that any change to a limit or requirement in the FRMS would potentially be subject to merits review under s 31(1)(b) of the Civil Aviation Act. This is because any such change would be treated as the imposition or variation of a “condition” imposed on a flight crew licence of an FCM. That construction does not sit comfortably with the dynamism of an FRMS as managed by the change management procedures in cl 7 of Appendix 7, which are a mandatory element of the FRMS. Furthermore, as earlier explained, an AOC holder such as Qantas may change the FRMS in certain circumstances without CASA’s approval, so that there would be no decision by CASA to approve the “variation” to an alleged “condition” which could be the subject of merits review. Indeed, it will be recalled that an AOC holder is under an obligation to amend the FRMS in order to ensure that the minimum and maximum values required by cl 3.2 are acceptable where information is acquired indicating that those values need to be revisited. Yet any amendments by Qantas are not made in the exercise of executive power and are plainly not amenable to review by the Tribunal. Thus, as Qantas submitted, eliding the distinction between conditions and obligations arising out of compliance with a condition would result in expansive avenues of review under s 31(1)(b) of the Civil Aviation Act, which would be contrary to the dynamism that the FRMS regime seeks to promote and gives rise to anomalous results.
99 Furthermore, taking the example posited by CASA, if hypothetically a Qantas pilot is subsequently employed by a different air operator which elects to comply with the 2019 CAO otherwise than by Appendix 7, it cannot be said that the conditions on that pilot’s flight crew licence are varied by the fact that that air operator has chosen a different operational regime to comply with under the 2019 CAO (AS at [60]; see also Qantas reply submissions at [10]).
100 These matters are difficult to reconcile with the proposition that the careful distinction drawn in the 2019 CAO between “conditions” and “limits and requirements” should be set to nought, and ultimately reinforce the erroneous nature of the interpretation of the 2019 CAO accepted by the Tribunal.
101 For these reasons, the Tribunal erred in concluding that it had jurisdiction to review the decision by CASA in the form of the FRMS Approval given by a delegate of CASA. Accordingly, a writ in the nature of certiorari should issue to quash the decision of the Tribunal made on 4 September 2020 and a declaration be made that the Tribunal does not have jurisdiction to review the administrative instrument numbered CASA.FRMS.0062 made by a delegate of CASA on 25 February 2020. A declaration should also be made that the delegate’s decision made on 25 February 2020 to issue the administrative instrument numbered CASA.FRMS.0062 is not a "reviewable decision" within the meaning of s 31(1)(b) of the Civil Aviation Act. The application should be allowed with costs.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry. |
Associate:
