Federal Court of Australia

Nam v Civil Aviation Safety Authority [2026] FCA 72

ORDERS

THE COURT ORDERS THAT:

1. The Applicant’s appeal be dismissed.

2. There be no order as to costs.

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

REASONS FOR JUDGMENT

HESPE J:

1 The applicant appeals a decision of the Administrative Review Tribunal affirming a decision of the Civil Aviation Safety Authority (CASA), refusing to issue him a medical certificate.  The applicant has a diagnosed condition of attention deficit hyperactivity disorder (ADHD) and his treatment involves taking daily doses of methylphenidate (trade name Ritalin).

2 By an earlier decision of a differently constituted Administrative Appeals Tribunal (First Tribunal) it was determined that the applicant satisfied the relevant criteria provided for in reg 67.150 of the Civil Aviation Safety Regulations 1998 (Cth) (Regulations) for the issue of a class 1 medical certificate and the criteria in reg 67.155 of the Regulations for the issue of a class 2 medical certificate.  The First Tribunal observed that the parties had not addressed reg 11.055 of the Regulations and remitted the matter back to CASA for reconsideration subject to a direction that “the applicant does not fail to satisfy the safety relevant condition criterion or the medication criterion by reason of his ADHD, his use of Ritalin or a combination thereof”.

3 CASA on remitter, and the Tribunal on review (Second Tribunal), was satisfied that the issuing of a medical certificate to the applicant was likely to have an adverse effect on the safety of air navigation and refused to issue the certificate having regard to reg 11.055 of the Regulations.

4 The issue before the Court concerns the interaction between reg 11.055 and reg 67.180 of the Regulations.

Legislative scheme

5 The main object of the Civil Aviation Act 1988 (Cth) (the 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 of the Act.  CASA is established pursuant to s 8 of the Act.  Its functions are set out in s 9 of the Act.  Broadly its functions relate to the conduct of the “safety regulation” of the Australian civil aviation industry “in accordance with [the] Act and the [R]egulations”.  One of the “means” by which CASA performs its functions is by “issuing certificates, licences, registrations and permits”: s 9(1)(e) of the Act.  Section 9A(1) provides that “[i]n exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration”.

6 Section 98 of the Act confers a power to make regulations.  Section 98(1) is in the following terms:

(1)    The Governor-General may make regulations, not inconsistent with this Act:

(a)    prescribing matters required or permitted by this Act to be prescribed;

(b)    prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to this Act;

(c)    for the purpose of carrying out and giving effect to the provisions of the Chicago Convention relating to safety;

(d)    in relation to safety of air navigation within a Territory or to or from a Territory;

(e)    in relation to safety of air navigation, being regulations with respect to trade and commerce with other countries and among the States; and

(f)    in relation to safety of air navigation, being regulations with respect to any other matter with respect to which the Parliament has power to make laws.

7 Section 98(6A) provides:

The regulations may contain provisions relating to medical standards that are inconsistent with the Sex Discrimination Act 1984 if the inconsistency is necessary for the safety of air navigation.

Note:    See also Part 2 of Schedule 1 to the Civil Aviation Amendment Act 2005.

8 The Regulations were made under the Act.  Part 11 of the Regulations sets out “administrative provisions for the regulation of civil aviation”, including in relation to “authorisations”: reg 11.005.  The term “authorisation” is defined for the purposes of Part 11 in reg 11.015 to include “a certificate capable of being granted to a person under these Regulations”.

9 Part 61 of the Regulations sets out the licensing scheme for pilots and flight engineers of registered aircraft: reg 61.005.  Regulation 61.150(1) provides that CASA “may grant any flight crew licence, rating or endorsement”.  “Flight crew licence” includes a “pilot licence” which is relevantly defined to include a commercial pilot licence and a private pilot licence.  The holder of a commercial pilot licence is authorised to pilot, as pilot in command, any aircraft in any operation (other than multi-crew aircraft and subject to certain take off weight limitations depending on flight time experience) and to pilot, as co-pilot, any aircraft in any operation: reg 61.570.  The holder of a private pilot licence is authorised to pilot as pilot in command or co-pilot an aircraft if the aircraft is engaged in a private operation or the holder of the private pilot licence is receiving flight training: reg 61.505.

10 Regulations 61.570 and 61.505 are subject to Subpart 61.E of the Regulations. Subpart 61.E sets out limitations that apply to the exercise of the privileges of all pilot licences.  Relevantly, the holder of a commercial pilot licence is authorised to exercise the privileges of the licence only if the holder also holds a current class 1 medical certificate or a medical exemption: reg 61.415(1)(a).  The holder of a private pilot licence is authorised to exercise the privileges of the licence only if the holder also holds a current class 1 or 2 medical certificate or a medical exemption: reg 61.410(1)(a).

11 Accordingly, it is not a requirement to the grant of a pilot licence that the applicant hold a medical certificate.  Rather, the holding of a medical certificate is a prerequisite to the exercise of the privileges conferred by the licence.

12 The issue and administrative control of medical certificates and the medical standards for the issue of such certificates are provided for in Part 67 of the Regulations: reg 67.005.

13 Part 67, amongst other things, provides for the appointment of “appropriately qualified persons” as Designated Aviation Medical Examiners (referred to in the Regulations as “DAMEs”) or Designated Aviation Ophthalmologists (referred to in the Regulations as “DAOs”).  A medical practitioner may apply to CASA for appointment as a DAME or DAO for the purposes of Part 67: reg 67.025.  A DAME is required to comply with any applicable requirements of the Designated Aviation Medical Examiner’s Handbook: reg 67.060(1)(a).  The Designated Aviation Medical Examiner’s Handbook is published by CASA: reg 67.010(1).  The Designated Aviation Medical Examiner’s Handbook sets out the routine examinations that an applicant for the issue of a medical certificate must undergo to establish whether he or she meets the relevant medical standard for the certificate (Note 1 to reg 67.180).

14 A person may apply to CASA for the issue of a medical certificate: reg 67.175.

15 Regulation 67.180 relevantly provides:

(1)    Subject to subregulation (7) and regulation 11.055, on receiving an application under regulation 67.175, CASA must issue a medical certificate to the applicant if the applicant meets the requirements of subregulation (2).

(2)    For subregulation (1), the requirements are:

(a)    the applicant has undergone any relevant examinations that, in the opinion of CASA, are necessary in the particular case; and

(b)    each relevant examination has been carried out by an examiner to whom subregulation (4) applies [relevantly, a DAME or DAO]; and

(c)    for each relevant examination, the applicant answers every question asked by the examiner that the examiner considers necessary to help CASA to decide whether the applicant meets the relevant medical standard; and

(d)    subject to subregulation (5), the applicant authorises the disclosure to CASA and the examiner of any information or documents about the applicant:

(i)    that are held by a person, organisation, body or authority mentioned in subregulation (6); and

(ii)    that may help CASA to decide whether the applicant meets the relevant medical standard; and

(e)    either:

(i)    the applicant meets the relevant medical standard; or

(ii)    if the applicant does not meet that medical standard—the extent to which he or she does not meet the standard is not likely to endanger the safety of air navigation; and

(f)    if, in addition to any relevant examinations that the applicant has undergone under paragraph (a), CASA has directed the applicant to undergo an examination under subregulation 67.165(1):

(i)    the applicant has undergone that examination; and

(ii)    having taken into account the result of the examination, CASA is satisfied that issuing a medical certificate to the applicant would not endanger the safety of air navigation.

…

(7)    CASA must not issue a medical certificate to an applicant if it is satisfied that the applicant:

(a)    has knowingly or recklessly made a false or misleading statement in relation to the application for the medical certificate; or

(b)    does not satisfy the requirements of this regulation; or

(c)    has not, in the course of undergoing a relevant examination for the medical certificate, complied with a request made under subregulation 67.170(1).

16 Regulation 67.150 relevantly provides “a person who satisfies the criteria in table 67.150 meets medical standard 1.”  Relevantly, table 67.150 provides:

Table 67.150 Criteria for medical standard 1

17 The term “safety-relevant” is defined in reg 67.015 only in relation to a “medically significant condition”:

For the purposes of this Part, a medically significant condition is safety-relevant if it reduces, or is likely to reduce, the ability of someone who has it to exercise a privilege conferred or to be conferred, or perform a duty imposed or to be imposed, by a licence that he or she holds or has applied for.

18 A “medically significant condition” is broadly defined to include:

(a)    any of the following (no matter how minor):

(i)    any illness or injury;

(ii)    any bodily infirmity, defect or incapacity;

(iii)    any mental infirmity, defect or incapacity;

(iv)    any sequela of an illness, injury, infirmity, defect or incapacity mentioned in subparagraph (i), (ii) or (iii); and

(b)    any abnormal psychological state; and

(c)    drug addiction and drug dependence; and

(d)    for a woman—pregnancy and the physiological and psychological consequences of pregnancy or of termination of pregnancy.

19 Regulation 67.155 relevantly provides that a person who satisfies the criteria in table 67.155 meets “medical standard 2”.  Items 2.1-2.3 of that table are in the same terms as items 1.1-1.3 of table 67.150, set out above.

20 Regulation 67.165 provides:

(1)    If CASA has reason to believe that an applicant for the issue of a medical certificate has a condition (including a condition other than a medical condition) that may, if he or she is issued the medical certificate, endanger the safety of air navigation, CASA may direct the applicant to do either or both of the following:

(a)    submit to an examination carried out by a medical practitioner, specialist psychiatrist, clinical psychologist, audiologist, optometrist, orthoptist, orthotist, occupational therapist, specialist prosthetist or a practitioner of another kind specified in the direction;

(b)    submit to an examination or test by a person (not necessarily a medical practitioner) expert in the safe performance of the particular activity in respect of which the medical certificate is sought.

(2)    For paragraph (1)(a), CASA may nominate a particular practitioner, of a kind mentioned or referred to in that paragraph, who is to carry out the examination.

(3)    For paragraph (1)(b), CASA may nominate a particular person who is expert in the safe performance of the activity concerned to carry out the examination.

21 Regulation 67.225 provides for medical certificates to be issued by DAMEs in certain circumstances.  Relevantly, it provides:

(1)    A person whose medical certificate has expired may apply to a DAME for the issue of a medical certificate under this regulation if the medical certificate:

(a)    was issued by CASA; and

(b)    was not subject to a condition that the period during which the certificate remains in force may be extended only by CASA.

(2)    An application must be made within 3 months after the medical certificate has expired.

(3)    On receiving an application under subregulation (1), a DAME must:

(a)    deal with it in accordance with the Designated Aviation Medical Examiner’s Handbook; and

(b)    subject to this regulation, issue a new medical certificate to the applicant only if satisfied that:

(i)    the applicant has, subject to subregulation (5), authorised the disclosure of his or her medical information and documents to the DAME, being information and documents held by any of the persons, organisations, bodies or authorities mentioned in subregulation (6); and

(ii)    issuing the medical certificate to the applicant will not adversely affect the safety of air navigation.

Note:    If a medical certificate is issued to a person by a DAME, the medical certificate remains in force for the period (which must not be longer than 2 months) set out in the certificate—see subregulation 67.205(5).

(4)    The DAME must not issue a medical certificate to the applicant if the DAME is satisfied that the applicant:

(a)    has knowingly or recklessly made a false or misleading statement in relation to the application for the medical certificate; or

(b)    does not satisfy the requirements of this regulation; or

(c)    has not, in the course of undergoing a relevant examination for the medical certificate, complied with a request made under subregulation 67.170(1).

22 Regulation 67.230 relevantly provides:  

(1)    If it is necessary, in the interests of the safety of air navigation, for the holder of a medical certificate to demonstrate:

(a)    that he or she continues to meet the relevant medical standard; or

(b)    that holding the certificate does not adversely affect the safety of air navigation;

CASA may direct the holder to do any 1 or more of the following:

(c)    submit to an examination carried out by a medical practitioner, specialist psychiatrist, clinical psychologist, audiologist, optometrist, orthoptist, orthotist, occupational therapist, specialist prosthetist or a practitioner of another kind specified in the direction;

(d)    submit to an examination or test by a person (not necessarily a medical practitioner) expert in the safe performance of the particular activity to which the medical certificate relates;

(e)    authorise the disclosure to CASA of any information or document about the holder, held by a person, organisation, body or authority referred to in subregulation (4), that may help CASA to decide whether:

(i)    the holder continues to meet that medical standard; or

(ii)    the holder’s holding the certificate may adversely affect the safety of air navigation.

23 Regulation 11.055 relevantly provides:

(1) This regulation applies despite any other provision of these Regulations that provides for the grant or issue of an authorisation, …

(1A)    Subject to subregulations (1B) and (1C), if a person has applied for an authorisation in accordance with these Regulations, CASA may grant the authorisation only if:

(a)    the person meets the criteria specified in these Regulations for the grant of the authorisation; and

(b)    any other requirements in relation to the person that are specified in these Regulations for the grant of the authorisation are met; and

(c)    any other requirements in relation to the thing in respect of which the application is made that are specified in these Regulations for the grant of the authorisation are met; and

(d)    these Regulations do not forbid CASA granting the authorisation in the particular case; and

(e)    granting the authorisation would not be likely to have an adverse effect on the safety of air navigation.

…

(2)    In paragraph (1A)(a), a reference to meeting the criteria for the grant of an authorisation includes (in the case of an applicant who is an individual):

(a)    having any qualifications required by or under these Regulations for the grant of the authorisation; and

(b)    having any experience required by or under these Regulations for that grant; and

(c)    having successfully completed any training required by or under these Regulations for that grant; and

(d)    if there is a requirement as to recency or currency of the applicant's training or experience—meeting that requirement; and

(e)    if a standard of medical fitness is required by or under these Regulations for that grant:

(i)    having attained that standard; and

(ii)    having been granted any medical certificate required; and

(f)    if particular attributes of character are required by or under these Regulations for that grant—having those attributes; and

(g)    if a standard of proficiency in an activity is required by or under these Regulations for that grant—meeting that standard of proficiency.

…

(4)    For paragraphs (1A)(e) and (1B)(b), CASA may take into account:

(a)    the applicant’s record of compliance with regulatory requirements (in Australia or elsewhere) relating to aviation safety and other transport safety; and

(b)    the applicant’s demonstrated attitude towards compliance with regulatory requirements (in Australia or elsewhere) relating to aviation safety and other transport safety; and

(c)    the applicant’s experience (if any) in aviation; and

(d)    the applicant’s knowledge of the regulatory requirements applicable to civil aviation in Australia; and

(e)    the applicant’s history, if any, of serious behavioural problems; and

(f)    any conviction (other than a spent conviction, within the meaning of Part VIIC of the Crimes Act 1914) of the applicant (in Australia or elsewhere) for a transport safety offence; and

(g)    any evidence held by CASA that the applicant has contravened:

(i)    the Act or these Regulations; or

(ii)    a law of another country relating to aviation safety; or

(iii)    another law (of Australia or of another country) relating to transport safety; and

(h)    in the case of an authorisation referred to in subregulation 11.040(2), the applicant’s financial standing and financial stability; and

(i)    any other matter relating to the fitness of the applicant to hold the authorisation.

Factual background

24 The applicant holds a private and commercial pilot licence.  He was first granted a class 1 medical certificate in 2013.  On 10 July 2017, CASA granted the applicant a class 1 medical certificate and a class 2 medical certificate.  The applicant’s class 1 medical certificate expired in June 2018. The applicant’s class 2 medical certificate was to expire on 20 June 2021.

25 In November 2020, the applicant was diagnosed with ADHD.  In April 2021, the applicant was first prescribed methylphenidate at a dose of 10 mg, four times a day, to treat his ADHD.

26 The applicant’s class 2 medical certificate was suspended by CASA on 4 January 2021 and cancelled on 4 March 2021, due to his ADHD diagnosis.

27 On 11 June 2021, the applicant applied for a class 1 medical certificate and a class 2 medical certificate.  On 10 August 2022, CASA refused to issue class 1 and class 2 medical certificates to the applicant (the Original Decision) due to his ADHD diagnosis and the treatment of the condition using methylphenidate.  CASA considered that the applicant did not satisfy the criteria in reg 67.180 of the Regulations.

28 In September 2022, the applicant sought review of the Original Decision before the First Tribunal.

29 By the date of the First Tribunal’s decision, the applicant was taking 40 mg of Ritalin daily, 20 mg in the morning, 10 mg later in the morning and 10 mg in the early afternoon.

30 Before the First Tribunal, CASA did not contend that the applicant’s ADHD condition of itself resulted in the applicant failing to satisfy items 1.1 or 2.1 of the respective tables.  Rather, the submission was that it was the applicant’s ADHD treated with Ritalin, or the applicant being treated with Ritalin, that was a safety-relevant condition of the relevant kind.

31 The First Tribunal concluded that:

(1) The treatment for the applicant’s ADHD condition did not form part of the condition itself.  The treatment for a condition is not itself an abnormality, disability or disease and nor is it a part of an abnormality, disability or disease.  The applicant suffers from ADHD.  Ritalin is not a condition from which the applicant suffers.

(2) Any ADHD condition suffered by the applicant was very mild.

(3) It followed that the applicant did not fail to satisfy the criteria in item 1.1 of table 67.150 or item 2.1 of table 67.155.

(4) The applicant did not suffer side effects when taking Ritalin.  Items 1.3 and 2.3 require that a drug be used by the person concerned that causes that person to experience any side effects likely to affect the person to an extent that is safety-relevant. The focus is on the person concerned.  That person must experience side effects.  A person does not experience side effects from use of Ritalin simply because there is a substantial or real risk of a side effect being experienced by someone (at large) who uses Ritalin.

(5) It is part of the design of Ritalin, and its intended effect, that it wear off.  The side effects of Ritalin do not include an effect of that use that is inevitable and consistent with its design and intended operation.

(6) In any event, any resurgence in the applicant’s ADHD symptoms once the effects of Ritalin wear off would not be safety-relevant given that any effects of the applicant’s ADHD are very mild.

(7) Because the First Tribunal was not satisfied that the applicant suffered from side effects from his use of Ritalin, the First Tribunal was satisfied that the applicant did not fail to meet the criterion in items 1.3 or 2.3.

32 The First Tribunal observed that reg 67.180(1) of the Regulations was subject to reg 11.055 and that neither party had made any submissions about the applicability of reg 11.055.

33 By decision issued on     2 November 2023, the First Tribunal set aside the Original Decision and remitted the matter back to CASA for reconsideration, subject to a direction that “the applicant does not fail to satisfy the safety relevant condition criterion or the medication criterion by reason of his ADHD, his use of Ritalin or a combination thereof”.  When read in light of the reasons for decision, it is apparent that the First Tribunal directed CASA that the applicant did not, by reason of his ADHD or his use of Ritalin or “a combination thereof”, fail the criteria in items 1.1 and 1.3 of table 67.150 and items 2.1 and 2.3 of table 67.155 of the Regulations.

34 On 23 July 2024, CASA made the decision on remitter to refuse to issue to the applicant a medical certificate.

35 The applicant applied for review by the Second Tribunal of CASA’s decision dated 23 July 2024.  The Second Tribunal concluded as follows.

(1) The Second Tribunal was addressing the same question as CASA on remitter; that is, the Second Tribunal was reviewing the decision subject to the direction from the First Tribunal.  Whether the applicant met the medical criteria in table 67.150 and table 67.155 were not before the Second Tribunal.  The issue for the Second Tribunal was confined to the application of reg 11.055(1A)(e) of the Regulations.

(2) The Second Tribunal rejected the applicant’s contention that it was not permissible for the Second Tribunal to consider safety issues relating to medical conditions.  The Second Tribunal did not consider reg 11.055(4) limited the matters that could be taken into account in determining whether reg 11.055(1A)(e) was satisfied.  Those factors were “non-exhaustive”, particularly having regard to the object of the Act.  Regulations 11.055(1A)(a) and (e) were cumulative.  It was possible to satisfy the medical criteria (as part of satisfying reg 11.055(1A)(a)) and fail to satisfy reg 11.055(1A)(e).

(3) By the time of the Second Tribunal decision, the applicant was taking a single daily dose of 40 mg methylphenidate (long-acting formulation).

(4) The issuing of a medical certificate was the grant of an authorisation for the purposes of reg 11.055.

(5) Regulation 11.055(1A) should be interpreted to mean that if there remains a safety issue even after satisfaction of the criteria in Part 67 of the Regulations, a medical certificate should not be issued.  The obligation in reg 67.180 is expressed as being subject to reg 11.055.

(6) Regulation 11.055(1A)(e) enabled CASA to address residual risk associated with the grant of an authorisation.  The Second Tribunal considered its task to be to decide whether the issuing of the medical certificate would be likely to have an adverse effect on the safety of air navigation.  What was required was “a material deterioration in the safety of air navigation”.

(7) The Second Tribunal considered the potential intended and unintended effects of methylphenidate and the unknown effects of flying and high altitudes on the pharmacology of methylphenidate.  The effect on the applicant from methylphenidate while flying was not known.  The Second Tribunal considered that:

It would be reckless to allow a person on medication for ADHD to fly when the learnings are not sufficiently developed so as to know what effect that medication will have.

(8) The main underlying concern of the Second Tribunal was the uncertainty that had an adverse effect on the safety of air navigation.  Methylphenidate is a disqualifying medication in Australia, USA, UK and Israel.  The approach of overseas flying authorities is relevant because CASA is required to perform its functions in a manner consistent with the Chicago Convention and any other agreement between Australia and another country relating to the safety of air navigation.

(9) The Tribunal found based on the expert evidence that issuing a medical certificate and allowing the applicant to fly would be likely to have an adverse effect on the safety of air navigation.

(10) The Tribunal concluded that reg 11.055(1A) was not satisfied and the medical certificate should not issue.

Grounds of appeal

36 By his grounds of appeal, the applicant contends that the Second Tribunal erred in its construction of reg 11.055(1A)(e) of the Regulations.  The applicant contends that, properly constructed, reg 11.055(1A)(e) is concerned with matters of fitness and propriety to hold the relevant authorisation and does not confer “unfettered discretion” after the test for the relevant authorisation has been otherwise satisfied.  The applicant contends that the Second Tribunal erred in construing reg 11.055(1A)(e) in the following ways:

(a) as conferring an “unfettered discretion”; and

(b) as enabling the matters that may be taken into account as having an adverse effect upon the safety of navigation to extend beyond matters as to “fitness and propriety”.

Applicant’s submissions

37 The applicant submits:

(1) The requirements of reg 67.180 are specific and set out the criteria which relate to medical conditions and their treatment for the issue of a medical certificate.

(2) In light of the overall context, reg 11.055, and in particular reg 11.055(1A)(e), is directed at determining whether the applicant is a fit and proper person to be issued a medical certificate aside from his medical condition or the treatment prescribed for that condition.

(3) The words “subject to … regulation 11.055” in reg 67.180 were used “only as a draftsman’s cautionary expression indicating that if there is any conflict” between reg 11.055 and reg 67.180, reg 11.055 prevails, but those words say “nothing about whether there would in truth be any conflict between the two sets of provisions”. And, in any event, there is no conflict between reg 11.055 and reg 67.180 so the words “subject to” do “nothing” citing Davis v Grocon Ltd [1992] 2 VR 661 at 667 (Hayne J).

(4) It follows that if reg 67.180 is satisfied, reg 11.055 does not provide CASA with a power to refuse to issue a medical certificate on grounds which relate the applicant’s use of Ritalin.

38 The applicant relied upon the following sentence in the Explanatory Statement that accompanied reg 11.055 when it was introduced (noting that when originally made, reg 11.055(1A)(e) was reg 11.055(1)(d)):

New regulation 11.055 - Grant of authorisation

This regulation requires CASA to grant an authorisation applied for if:

* the applicant meets the criteria and requirements of CASR for the issue of the authorisation (paragraphs (1)(a) and (b) and subregulation 11.055 (2)); and

* no provision of the Act or CASR precludes CASA from granting the authorisation (qualification at beginning of subregulation (1), and paragraph (1)(c)); and

* granting the authorisation is not likely to have an adverse effect on the safety of air navigation (paragraph (1)(d)).

It is intended that paragraph 11.055 (1)(d) operates as a fit and proper person test. Subregulation (4) would set out the matters relevant to this test. This subregulation is based on section 10 of the Civil Aviation Act 1990 of New Zealand.

Subregulations 11.055 (7) and (8) provides [sic] that CASA can grant an authorisation in relation to only some of the matters sought in the application, and can place conditions on the authorisation which are either permitted or required under CASR or are otherwise necessary in the interests of the safety of air navigation.

(Emphasis added.)

39 The applicant did not contest the factual conclusions reached by the Second Tribunal on the basis, for example, that the findings were not open on the evidence or were legally unreasonable.

Consideration

Interaction between reg 11.055 and reg 67.180

40 A prerequisite to the issue of a medical certificate is meeting the medical standard.  The medical standard is met if the criteria prescribed in table 67.150 or table 67.155 are satisfied.  To establish that an applicant satisfies the criteria, the applicant must undergo a medical examination carried out by an authorised medical practitioner.  CASA does not carry out medical examinations.  It relies on authorised medical practitioners.  The criteria in the tables are the standards to which an authorised medical practitioner’s examination is directed.  As the First Tribunal decision makes apparent, the criteria in the medical standards are specific and open to narrow interpretation.  The criteria ensure that medical examiners can identify the ends to which their examinations are conducted.  By providing specific medical standards, CASA can provide the necessary guidance and criteria against which medical examiners can undertake their examinations of applicants.

41 But the medical standard is not the only prerequisite to the issue of a medical certificate.  CASA’s obligation under reg 67.180 to issue a medical certificate is “subject to” reg 11.055: reg 67.180(1).

42 The applicant’s submission that there is no conflict between reg 11.055 and reg 67.180 with the result that the words “subject to” have no operative effect because there is no conflict between the two regulations is not accepted.  The passages relied upon by the applicant from Davis v Grocon, quoted above at [37(3)], record submissions made by the respondent in that case.  The Court in that case held that the expression “subject to” in the context of the legislation in that case “was not used simply as a draftsman’s precaution against possibly conflicting statutory provisions” (at 668).

43 Here, reg 67.180 purports to compel CASA to issue a certificate if the criteria provided for in reg 67.180(2) are satisfied.  Regulation 11.055 sets out preconditions to CASA’s power to issue authorisations, including medical certificates.  By making reg 67.180 subject to reg 11.055, the Regulations direct that CASA’s obligation to issue a medical certificate remains subject to the satisfaction of the preconditions in reg 11.055(1A).

44 It is because the medical standards are specific and detailed that they may not encapsulate every source of medical related risk to the safety of air navigation.  Accordingly, there may be a need for a residual power conferred upon CASA to refuse to grant a medical certificate if to do so would be inconsistent with reg 11.055.

45 The holding of a medical certificate is not a precondition to the grant of a pilot licence.  It is a precondition to the exercise of the privileges conferred by that licence.  By making reg 67.180 subject to reg 11.055, the Regulations further CASA’s statutory obligation to safeguard air safety by ensuring CASA an overriding oversight role, not only in relation to the issue of pilot licences but in relation to the exercise of the privileges conferred by those licences.

46 The next issue for consideration is how reg 11.055 is to be construed.

Construction of reg 11.055

47 The following observations are made in relation to reg 11.055:

(1) The regulation is expressed to apply despite any other provision of the Regulations that provides for the grant or issue of an authorisation: reg 11.055(1).  In the hierarchy of provisions within the Regulations, it is therefore to be given primacy.

(2) The chapeau in reg 11.055(1A) is expressed as “CASA may grant the authorisation only if” certain requirements are met.  The word “may” in context is to be construed as providing for the prerequisites to the exercise of power by CASA.  That is, CASA’s power to grant an authorisation is predicated on and subject to the requirements set out in regs 11.055(1A)(a)-(e) being satisfied.  Regulations 11.055(1A)(a)-(e) are expressed in cumulative terms.

(3) Regulations 11.055(1A)(a)-(c) draw a distinction between criteria and requirements.  Regulation 11.055(1A)(a) refers to the “criteria” that a person must meet for the grant of an authorisation.  Regulations 11.055(1A)(b) and (c) refer to “requirements” that a person or thing must meet for the grant of an authorisation.

(4) Regulation 11.055(1A)(d) makes it clear that although reg 11.055 has priority over all other regulations that provide for the grant of an authorisation, CASA is not empowered to grant an authorisation if the Regulations forbid CASA granting the authorisation in the particular case.  In other words, the primacy given to reg 11.055 does not extend to overriding a prohibition on CASA granting an authorisation.

(5) If the Regulations provide for a standard of medical fitness, meeting the criteria for the purposes of reg 11.055(1A)(a), has two distinct aspects.  First, the applicant must have “attained that standard”: reg 11.055(2)(e)(i).  Second, the applicant must have “been granted any medical certificate required”: reg 11.055(2)(e)(ii).  Attaining the standard is not sufficient.

(6) By reg 11.055(1A)(e), CASA only has power to grant an authorisation if “granting the authorisation would not be likely to have an adverse effect on the safety of air navigation”.  Regulation 11.055(4) sets out matters that “CASA may take into account” “[f]or” reg 11.055(1A)(e).  Reading regs 11.055(4) and (1A)(e) together suggests that whether the granting of an authorisation would not be likely to have an adverse effect on the safety of air navigation is a matter upon which CASA must form a state of satisfaction.

48 The applicant’s construction of reg 11.055(1A)(e) is that, when read with reg 11.055(4), it limits CASA to considering matters going to whether the applicant is a “fit and proper” person to hold a medical certificate by having regard to matters other than matters relating to medical conditions.

49 The applicant does not go so far as to contend that reg 11.055(4) enumerates the particular considerations to which CASA can permissibly have regard in being satisfied that the grant of an authorisation would not be likely to adversely affect the safety of air navigation, with the result that a consideration of any other matter would be to take into account an irrelevant consideration in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.  Rather, the applicant contends that, in forming a state of satisfaction for the purposes of reg 11.055(1A)(e) informed by reg 11.055(4), the considerations which are to be taken into account are non-medical considerations.

50 The applicant’s construction of reg 11.055(1A)(e) is not accepted, having regard to the terms of reg 11.055 and the context of the Regulations as a whole.

51 The applicant’s construction unduly confines the language of reg 11.055(4)(i).  By its terms, even if reg 11.055(4) is construed as limiting the considerations to which CASA may have regard in forming a view as to whether the grant of a medical certificate to the applicant would be likely to adversely affect the safety of air navigation, reg 11.055(4)(i) enables CASA to have regard to “any other matter relating to the fitness of the applicant to hold the authorisation”.  Having regard to the Regulations in their totality, other matters relating to the fitness of the applicant can include medical related matters over and above those prescribed by the medical standards.

52 The power of an authorised medical practitioner under reg 67.225 to reissue an expired medical certificate is conditional on the authorised medical practitioner being satisfied that issuing the medical certificate to the applicant will not adversely affect the safety of air navigation: reg 67.225(3)(b)(ii).  In forming the state of satisfaction under reg 67.225(3)(b)(ii), the authorised medical practitioner is not limited to matters such as those set out in reg 11.055(4).  To construe reg 11.055(1A)(e) as requiring CASA, in issuing an original medical certificate, to form a state of satisfaction in relation to the effect on the safety of air navigation based on matters of character of the kind identified in reg 11.055(4)(a)-(h) (if coupled with the applicant’s narrow construction of reg 11.055(4)(i)) would lead to an anomalous result in which a medical practitioner in considering whether to reissue an expired medical certificate could have regard to a greater range of factors in forming a state of satisfaction about the same matter (being the effect on the safety of air navigation) in circumstances where CASA must carry out its functions whilst regarding the safety of air navigation as “the most important consideration”.

53 The applicant’s construction of reg 11.055(1A)(e) as being limited to a consideration of matters other than those relating to medical conditions is also not consistent with reg 67.230.  Regulation 67.230 enables CASA to direct that the holder of a medical certificate submit to examinations or tests, expressly including medical examinations, to demonstrate either that the holder continues to meet the relevant medical standard (reg 67.230(1)(a)) or that the holding of the certificate does not adversely affect the safety of air navigation (reg 67.230(1)(b)). Regulation 67.230(1)(b) cannot be construed as being a fit and proper character test alone because it is difficult to see how a medical examination would assist in determining whether such a test was satisfied.  It is difficult to see what role reg 67.230(1)(b) would have if satisfaction of the medical standards necessarily meant that medical related issues had no further role to play in determining whether the safety of air navigation would be adversely affected by an applicant continuing to hold a medical certificate.

54 The reference in the explanatory statement to reg 11.055(4) as being “based on section 10 of the Civil Aviation Act 1990 of New Zealand” (NZ Act) does not support the applicant’s construction of reg 11.055(1A)(e) as precluding CASA from having regard to medical related issues in determining whether that regulation is satisfied.  Section 10 of the NZ Act is itself expressed in non-exhaustive terms:

10 Criteria for fit and proper person test

(1)    For the purpose of determining whether or not a person is a fit and proper person for any purpose under this Act, the Director shall, having regard to the degree and nature of the person’s proposed involvement in the New Zealand civil aviation system, have regard to, and give such weight as the Director considers appropriate to, the following matters:

(a)    The person’s compliance history with transport safety regulatory requirements:

(b)    The person’s related experience (if any) within the transport industry:

(c)    The person’s knowledge of the applicable civil aviation system regulatory requirements:

(d)    Any history of physical or mental health or serious behavioural problems:

(e)    Any conviction for any transport safety offence whether or not—

(i)    The conviction was in a New Zealand Court; or

(ii)    The offence was committed before the commencement of this Act:

(f)    Any evidence that the person has committed a transport safety offence or has contravened or failed to comply with any rule made under this Act.

(g)    in the case where a New Zealand AOC with ANZA privileges applies, the person’s compliance with the conditions specified in section 11G(4).

(2)    The Director shall not be confined to consideration of the matters specified in subsection (1) of this section and may take into account such other matters and evidence as may be relevant.

(3)    The Director may, for the purpose of determining whether or not a person is a fit and proper person for any purpose under this Act,—

(a)    Seek and receive such information (including medical reports) as the Director thinks fit; and

(b)    Consider information obtained from any source.

55 It is apparent from the terms of s 10 of the NZ Act that it does not limit the Director from looking at medical related issues in determining whether or not a person is a fit and proper person: ss 10(1)(d) and (3)(a) (which specifically includes medical reports).  Section 10 itself is accessorial to s 9 of the NZ Act which provides for an overriding criterion of the interests of aviation safety.

Conclusion

56 The Regulations, including reg 11.055, should be construed in accordance with the Act pursuant to which the Regulations are made.  Regulations are required to give effect to the Act.  Section 9A(1) of the Act directs CASA to regard the safety of air navigation as the most important consideration in exercising its powers and performing its functions.  The applicant did not contest the factual conclusions reached by the Second Tribunal that it is not known whether exposure to high altitudes influences the metabolism of methylphenidate such that the risk to the safety of air navigation could neither be evaluated nor managed.

57 It is antithetical to CASA’s legislative directive for CASA to be compelled by regulation to issue a medical certificate if CASA reasonably forms the view that do so would prejudice the safety of air navigation.  The Second Tribunal did not err in its construction of reg 11.055(1A)(e) of the Regulations as alleged by the applicant.

58 For these reasons, the appeal must be dismissed.

Costs

59 The applicant submits that if unsuccessful, there should be no order as to costs.  The applicant submits that the proceedings test issues of importance.  The respondent submits that costs should follow the event if the applicant is unsuccessful.

60 The general presumption is that costs will follow the event, with the general position being that the successful party will be awarded costs against the unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67] (McHugh J, Brennan CJ agreeing).  In exercising its discretion to award costs, a court may deviate from the general presumption but should not do so on the basis of private opinion, benevolence, or sympathy for the unsuccessful party: Oshlack at [22] (Gaudron and Gummow JJ).

61 There is no special costs regime applicable to “‘public interest’ litigation”: Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411 at [6] (Black CJ, Moore and Emmett JJ).  Nonetheless, a legitimate public interest in the importance of the issues resolved is a factor that the Court may take into account when exercising the discretion conferred by s 43 of the Federal Court of Australia Act 1976 (Cth): Fisse v Secretary, Department of the Treasury (No 2) [2008] FCAFC 200; (2008) 253 ALR 52 at [9] (Stone, Buchanan and Flick JJ).

62 In the context of appeals from the former Administrative Appeals Tribunal the following observation was made in Shelton v Repatriation Commission [1999] FCA 181; (1999) 85 FCR 587 at [10] (Burchet, RD Nicholson and Finkelstein JJ):

… it cannot be said the application to the Court was unreasonable. Often, in administrative law, such an application as this was clarifies the law in a wider interest than that of the applicant. Indeed, it is as essential to good administration as it is important in the interests of individual justice that administrative decisions should be open to accessible review. Persons affected by administrative decisions should not be overmuch deterred by the threat of costs orders in such cases, and the very wide discretion given to the Court by the Federal Court of Australia Act 1976 should not be automatically exercised adversely to the losing party.

63 Whether a party to proceedings before the Tribunal has, when notified of their right of appeal to this Court, been notified of the potential exposure to costs should they exercise that right, may also be relevant to the exercise of the discretion to award costs: Martinsen v Department of Family & Community Services [2004] FCA 297; (2004) 80 ALD 598 at [27] (Spender J).  There is no evidence before the Court as to whether the applicant was so notified.

64 The discretion to award costs must be exercised by reference to the facts and circumstances of this case.  The arguments made in the present case by the applicant were reasonable, notwithstanding that he was not successful.  The respondent did not make a claim for costs in its written submissions and its position was only clarified following questions from the Bench.  The present appeal to this Court was dismissed on the basis of a question of statutory construction rather than on a finding of fact made by the Tribunal (cf Fisse at [16]).

65 In all the circumstances, there will be no order as to costs.

Associate:

Dated:    12 February 2026