The Explanatory Statement
344 As to the Explanatory Statement, at page 1, it relevantly provides as follows:
Purpose
The Civil Aviation Safety Authority (CASA) has assessed that community service flight operations have a higher risk of an accident or incident due to the existence of risk factors that are not usually present in baseline private operations. The purpose of the instrument is to mitigate this risk by placing conditions on flight crew licence holders conducting such operations that relate to requirements on the pilot (licence requirements, aeronautical experience, recency and medical fitness), operational and notification requirements and aircraft maintenance requirements.
(Emphasis added.)
345 In light of the evidence of Mr Monahan, I accept that the assessment of CASA referred to in this statement of purpose was sufficiently sound. A reasonable regulator, having regard to the material that was before CASA, could reasonably have assessed that "community service flight operations have a higher risk of an accident or incident due to the existence of risk factors that are not usually present in baseline private operations". As stated in this Explanatory Statement, I accept that the "purpose of the [Instrument] is to mitigate this risk by placing conditions on flight crew licence holders".
346 The Explanatory Statement continued:
Overview of instrument
Pilots can operate from a variety of unfamiliar locations in varying weather conditions with no organisational oversight or safety support from a certificated air operator. Pilots conducting such operations might become subject to self-induced pressure to start or complete a flight because of a passenger's medical condition.
The lack of organisation safety risk mitigators and the reliance on individual pilot assessments regarding a pilot's acceptance of a volunteer flight, and the flight's commencement or continuance, results in an increased need for pilots in command to be experienced and operationally recent. CASA has assessed that persons travelling on aircraft conducting community service flights are subject to flight operations of increased risk compared to charter or regular public transport flights. Although such persons are informed that these flights are not charter or regular passenger transport flights, there remains doubt regarding whether a non-aviation professional adequately understands the specific risks posed by this kind of operation.
Since 2011, community service flight accidents have resulted in 6 fatalities. To take account of the elevated risks, CASA considers it is appropriate to establish a regulatory baseline that provides clarity regarding an appropriate minimum safety standard. The instrument is intended to introduce reasonable and proportionate additional safety measures.
The instrument places conditions on the licences of flight crew members that conduct community service flights. The conditions introduce safety measures in relation to pilot licensing, medical fitness, and aeronautical experience. Operational requirements include that community service flights at night must be conducted using instrument instead of visual procedures. A community service flight can only be conducted in an aeroplane, and aeroplanes with a lower standard of airworthiness are excluded. There are also enhanced maintenance requirements for some aircraft.
(Emphasis added.)
347 In relation to these statements, based on the evidence of Mr Monahan, I accept that there was evidence which provided a rational and reasonable basis for the statements in this "Overview of instrument" section. It is apparent from the above extracts of the Explanatory Statement that a rational connection exists between the conditions imposed by the Instrument, the purposes in the CA Act (referred to above), and the requirement identified in s 98(5A) of the CA Act (that is, that the condition relates to a "matter affecting the safe navigation and operation, or the maintenance, of aircraft").
348 The Explanatory Statement explains that the purpose of the Instrument is to mitigate CSF operational risk by placing conditions on flight crew licence holders conducting those operations. Those conditions relate to pilot licence requirements, aeronautical experience, "recency", level of fitness, operational and notification requirements and air maintenance requirements. It is readily apparent that such conditions have a direct and obvious connection to "the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents" (CA Act, s 3A) and "the safe navigation and operation, or the maintenance, of aircraft", which are the matters in s 98(5A)(a) of the CA Act.
349 In this respect, each of the matters referred to in the "Overview of instrument" squarely relate to the topics of pilot training and experience, ongoing pilot "recency" and proficiency requirements and aircraft airworthiness. Moreover, Mr Monahan's unchallenged evidence was that, when CASA is considering altering the safety standards that apply to a particular flying activity, these matters are three of the four main "levers" that are generally used to make the appropriate adjustments.
350 In addition, the Explanatory Statement under the heading "Overview of instrument" identifies the manner in which CSFs are conducted. It observes that these flights are conducted by volunteer pilots under conditions that can be challenging. It observes that pilots can operate from a variety of unfamiliar locations and varying weather conditions with no organisational oversight or safety support from a certificated air operator. It further observes that pilots conducting such operations might become subject to a self-induced pressure to start or complete a flight because of a passenger's medical condition. As stated above, on the evidence, there was a rational and reasonable basis for CASA to make those observations, and these factors are all relevant to the safe navigation and operation of aircraft in the CSF sector and the express purposes of the CA Act.
351 The Explanatory Statement further explains that the lack of organisational safety and "risk mitigators", and the reliance on individual pilot assessments, results in an increased need for pilots in command to be experienced and operationally up-to-date. The conditions in the Instrument are directed to increasing aeronautical experience and the currency of that experience.
352 The Explanatory Statement at page 2 also identifies that, at least as assessed by CASA, CSFs have elevated risk and that the conditions imposed by the Instrument are intended to introduce reasonable and proportionate additional safety measures in relation to the licencing, medical fitness and aeronautical experience of pilots who operate in the CSF sector.
353 The Explanatory Statement identified that, since 2011, community service flight accidents have resulted in 6 fatalities. As I understood it, that is a statement of historical fact.
354 These are all statements from a regulator of air safety to which experienced aviation safety professionals have contributed. Angel Flight also accepts that these matters were expressed in good faith. In such circumstances, one can fairly conclude that the matters set out in the Explanatory Statement are overtly rational and reasonable.
355 I do not accept Angel Flight's submissions that it is necessary for CASA to demonstrate by some statistical or empirical analysis that a risk factor exists to justify the validity of a condition in an Instrument made under regulation 11.068(1). I do not accept that establishing a statistical significant difference between two subsectors of the aviation of industry is necessary to sustain the validity of an instrument issued under regulation 11.068 of the CASR. That is to impose a burden upon CASA beyond that required by standards of reasonableness and rationality and the requirements in s 98(5A) of the CA Act and regulation 11.068 of CASR. It is sufficient if a rational and reasonable basis exists for CASA to conclude that matters identified in relation to CSFs - such as operating in an unfamiliar location or operating an aircraft in varying weather conditions with no organisational oversight or safety support from a certificated air operator - imposes an elevated risk which the conditions in the Instrument reasonably seek to address and that they are matters affecting the safe navigation and operation, or the maintenance, of aircraft. It is sufficient if the conditions reasonably advance the purposes in the CA Act referred to above or if there is a sufficient connection between the conditions and the relevant objectives of the CA Act.
356 In this respect, Angel Flight's submissions tended to indicate that, to be valid, it was a requirement for CASA to isolate particular causal links between the circumstances of the CSF sector and the need for the conditions in the Instrument. Angel Flight's submissions tended to indicate that CASA was required to engage in a process of formulating a testable hypothesis concerning possible causal links, testing that hypothesis through data collection and analysis, and generating an assessment which is likely to be true, including by establishing an acceptable degree of statistical significance.
357 By way of example, in oral closing submissions, senior counsel for Angel Flight submitted:
MR WALKER: … [T]here were no empirical data or analyses from empirical data or analyses that provided differences with statistical significance which would have, in themselves, justified consideration being given to a differential treatment for the imposition of conditions directed to the all-important purpose of safety.
Now, I accept that pointing to the absence of such material or reasoning, what I will call the empirical approach, is pointing to something which, if present, would plainly have justified, in a way that judicial review would never question, the making of an instrument. And I accept that it's not simply a matter of inverting that and saying, in its absence, therefore, there cannot be an exercise of power lawfully. However, where that is lacking, and if we are correct in the further step of persuading your Honour that there is nothing else that provides the evidently intelligible connection between outcome and purpose so as to satisfy the requirements of the power, then, in our submission, we are not merely well on our way, but we have reached the position where your Honour should vindicate that minimal but critical requirement of rational justification in the exercise of serious administrative powers …
MR WALKER: … [I]n our submission, what you ought to find in accordance with the way that we have written this in the two written submissions in-chief on this point and in the summation that you find in our reply written submission on this point, that there was never an endeavour to connect the imposition of conditions by this instrument in their particular respects with anything that could be learned from the incidents, accidents and fatal accidents about which you have heard … [T]here is nothing in the instrument that can be said to be derived, let alone justified, by lessons learned from any incident, accident or fatal accident or the aggregate of them. There is nothing statistical, in any sense of that word, concerning, for example, numbers of passengers; neither is there anything statistical, whatever one means by that word, about pilot experience, including recency of landings, etcetera …
MR WALKER: … [I]t is equally the case that the idea of simply applying something because it is from overseas without at least something in the nature of investigation, calibration and understanding of comparability would … never be reasonable …
MR WALKER: … [W]hat I hope to persuade your Honour [of] is that once one establishes that there was nothing about the actual accident experience that either produced statistically significant differences between the sectors said to be compared, that in any event, that was an entirely unstable comparison …, totally unstable basis for a comparison which, in any event, produces a difference that cannot be said to be statistically significant …
Then we come to the more pointed lack of any connection … between what was available about the accidents … and … in any of the groups: the CSF group or the private aviation group … [T]here's no connection … between any data or empirical analysis and the content of the instrument, then one seems to be driven in this case, by default, to what I will call the overseas experience. Now, the overseas experience, as your Honour knows, doesn't produce what I'm going to call a parallel exercise, namely, where the same framework of reasoning is present, but with the great advantage of there being, in the overseas cases, empirical data to supply the absence that exists in this country …
But when it comes to calling in aid overseas experience, … [y]ou won't find, with respect, a schema of reference to overseas experience by Mr Monahan which points out why certain experience … should be regarded as casting any particular light let alone unfavourable light concerning the safety record of the Australian operations … [Y]our Honour will look in vain for anything in the nature of empirical studies available for the Australian decision-makers from overseas distinguishing in a meaningful way between flights that can be treated as equivalents of CSFs and other flights which can be treated as a sensible comparator for that …
MR WALKER: … [W]e are left with what, in our submission … is nothing other than well-meaning intuition [as the basis for the Instrument].
358 In reply, senior counsel for Angel Flight further submitted as follows:
MR WALKER: … [The] material does not single out in a way that explains the peculiar risk factor which is the foundation of the reasoning for the instrument. This instrument is not one that says, "For all we know this particular risk factor is common to all kinds of aeronautical operations but we choose, for reasons that a court can't examine by judicial review, to regulate only one segment of the activities" … We are left with the repeated assertion, in the material leading up to the making of the instrument and the ex post facto justification in the evidence, that there is to be discerned, we would respectfully submit, by not much more than surmise that there may be - that is, a hypothesis is raised - something peculiar about the circumstances or conditions of the CSFs which provides the justification for a CSF-specific instrument … Once it is … accepted that that hypothesis was never the subject of any testing, there were no data that were gathered for the purpose of examining that hypothesis, then one is simply left with the possibility that it is true, just as there is the possibility it is not true … [O]ur submission is that when the approach was taken of positing a peculiarity of CSFs in the face of a lack of data and analysis that meant that that may or may not be true, with no indication of a likelihood one way or the other, one's left scraping the bottom of the barrel in terms of the intellectual justification for what happened …
[H]ere, there is a plain statement of intent to address a peculiar risk factor, but the peculiar risk factor is not demonstrated, and of course then the connections all fall apart for the reasons examined in cross-examination that none of those provisions of the instrument address something which any analysis of the any of the accidents, incidents, or fatal accidents might have revealed one way or the other. That's the reason why, in our submission, [when] all proper weight [is] given to the experience of those who considered the making of this instrument, and to overseas … material, … it doesn't make out the peculiar risk factor, let alone the matching of the instrument to meet a peculiar risk factor.
359 I do not accept this type of methodology was required. This is for two reasons. First, there is no indication in the text of the relevant statutory materials that such an assessment, which is largely based on the methods of applied natural science, is necessary. Second, the authorities provide no indication that such methods are required.
360 As to the text of the relevant statutory materials, the "regulations may empower CASA to issue instruments in relation to … matters affecting the safe navigation and operation, or the maintenance, of aircraft": CA Act, s 98(5A)(a). In O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356, Toohey and Gaudron JJ at 374 described the words "in relation to" as being "an expression of broad import". Justice McHugh stated at 376 that the "prepositional phrase "in relation to" is indefinite", but, "subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters" (internal quotations in the original; emphasis added).
361 Having regard to those matters, I do not accept that the words "in relation to" in s 98(5A) of the CA Act required a connection between the Instrument and "matters affecting the safe navigation and operation, or the maintenance, of aircraft" that was supported by statistical significance or the methods of analysis which were advanced by Angel Flight. It was sufficient if there was "a relationship, whether direct or indirect, between" the two relevant "subject matters". There was, in particular, no requirement to establish that there was a statistically significant difference between the relevant accident and incident rates of CSFs and the relevant rates of other operations. There was no requirement that the conditions in the Instrument be supported by methods that are coextensive with natural science.
362 As to the position in relevant authorities, Dixon J (as his Honour then was) in Williams v Melbourne Corporation (1933) 49 CLR 142 (at 155) stated that "the true character of the by-law may … appear to be such that it could not reasonably have been adopted as a means of attaining the ends of [the relevant] power" and, in such a case, "the by-law will be invalid" (emphasis added). In Pestell, Menzies J stated at 323 that a "sound opinion" is one that is "right", but the "validity of a [relevant] rule does not depend on the soundness of a[n] … opinion"; rather, "it is sufficient if the opinion expressed is one reasonably open" (emphasis added). In Adelaide Corporation, French CJ described the relevant test as requiring "a rational relationship between the purpose for which the power is conferred and the laws made in furtherance of that purpose": Adelaide Corporation, [58]. Chief Justice French also stated that the "reasonable proportionality test of validity" was, "in substance, whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose": ibid. Justice Hayne (at [117]-[118]) described the test as involving "a question of degree and judgment" and stated that the relevant conclusion:
is to be reached paying due regard to "accepted notions of local government" and the fact that "[m]unicipalities and other representative bodies which are entrusted with power to make by-laws are familiar with the locality in which the by-laws are to operate and are acquainted with the needs of the residents of that locality". It is not to be assumed (and no reason was given to the contrary in this appeal) that any more confined understanding of a by-law making power should be preferred.
(Emphasis added.)
363 In light of those authorities and the matters referred to, I do not accept Angel Flight's submissions as to the methods of analysis which were said to be required for the purposes of making an instrument under regulation 11.068 of the CASR. I am satisfied that a reasonable regulator, having regard to the material that was before CASA, could reasonably have adopted the conditions in the Instrument as a means of attaining the ultimate end of "maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents": CA Act, s 3A.
364 This position is reinforced by the evidence of Mr Monahan.