(ii) Respondents' submissions
36 The respondents submitted that both 'serious' and 'imminent' import the notion, in their context, of a high probability of a risk being realised, whether or not it is in fact realized. Where that high probability is missing (as in the present case, on the respondents' submission), no matter how catastrophic the potential consequences, a risk cannot be characterized as a serious and imminent risk to air safety.
37 The respondents submitted that the meaning of the phrase 'serious and imminent risk to air safety' should be determined by reference to its context in Division 3A of the Act. Given the scope of reg 269 of the CAR (see para [11] above), Division 3A should be confined to the hopefully exceptional circumstance of serious and imminent risk to air safety.
38 The respondents submit that the notion of 'serious risk' has two limbs to it.
(i) The seriousness of the risk is principally, but not solely, related to the probability of the risk being realised; and
(ii) In the context of s 30DB, it must also relate to the significance of the consequence: a high chance of quite minor harm occurring is not what the section is aimed at.
39 As to 'imminent', this necessarily entails not only that there is a high probability of the risk being realised, but that that risk is one that may be realised in a short time frame, that is, very soon.
40 The respondents submitted that the case of the applicant focused on the magnitude of the potential consequences, and not on the probabilities of such consequences being realised. In the present case, the respondents cast no doubt upon the potential seriousness of the consequences, but said that there was only an 'outside' (to use a word discussed in argument) or remote chance that such consequences would materialize. Therefore there was not a 'serious risk'.
41 The respondents say that if there were a strong chance of some quite minor harm, that is not what the section is concerned with. Neither, if there were a miniscule chance of major harm, is such the concern of the section. All flying involves a degree of risk. A really significant chance of significant harm occurring is what the section contemplates.
(iii) Consideration
42 In CASA No 1, Sundberg J observed at [15]: 'The power conferred by s 30DE is no different in its nature from that routinely exercised by a court of determining whether a motor vehicle is being driven dangerously, recklessly or negligently'.
43 It was not in dispute that all flying involves risks to life and limb and that no flying avoids all outside chances. This is a significant aspect of the context. The section cannot be concerned simply with the seriousness of the consequences if the risk of an accident should become an actuality.
44 The phrase 'a serious and imminent risk to air safety' is a difficult one to comprehend fully in relation to all possible circumstances in which it might fall for consideration. It is, to a degree, a composite phrase: it is not appropriate to see 'serious' as only referring to the risk of harm occurring. In the context, 'serious' means something like 'really significant'. However, if a licence holder had done something indicative of very poor regard for safety but the potential consequences were only very slight then it might be unfair to call that a serious and imminent risk to air safety.
45 I agree with the applicant that the level of a risk is a product of a number of factors which include the probability or likelihood of its occurring, the degree of exposure and the potential consequences. Nevertheless, in most cases attention will focus on the degree of likelihood that a risk to air safety would eventuate. At least that is, to my mind, true of the present case.
46 As counsel for the respondents Mr Langmead SC (no doubt drawing on his experience as a pilot) submitted:
'To fly into a thunderstorm with little flying experience, to fly at wire height in the vicinity of wires without inspecting the area first, or to perform low level aerobatic manoeuvres without proper training … would be to engage in conduct that constitutes a serious and imminent risk to air safety, because great harm is very likely to happen very shortly.
To engage in a takeoff where risks are present, but rather than being serious and imminent they are merely outside chances, is to engage in conduct which does not constitute a serious and imminent risk to air safety. There is no flying which avoids risks that are outside chances.'
That is, all flying entails risks which, it is hoped, are remote.
47 The underlying concern of the legislation seems to be: in the interests of air safety, is the conduct of the authorisation holder such as to warrant immediate, temporary withdrawal of the rights of the authorised person, even though that might, in some (but, of course, not all) cases, mean the destruction or significant impairment of the holder's livelihood? At least the statutory test has, in my opinion, to be viewed with that notion as part of the context.
48 However, the injunction in s 30DE(3) that the Court must have regard to s 3A and subs 9A(1) also modifies the Court's role: the question is less one of possible hardship to the authorisation holder, than of considering the seriousness of the risk, as justifying interim suspension. The justification and the question of seriousness are to be approached with the two criteria of placing particular emphasis on preventing situations threatening safety, and viewing safety as the most important consideration, primarily in mind. That said, the question, at least in a case such as the present, still comes down to the likelihood of the risk materialising.
49 The prospect that a risk will materialise does not, other things being equal, alter according to the classification of a flight as private or commercial, nor depending on the reasons or necessity for undertaking the manoeuvres which give rise to the risk.
50 It is also useful to note that the degree of likelihood of the risks eventuating is a different question from others not uncommonly asked in situations of risk. In themselves, breaches of lawful regulatory requirements, or of civil duties of care to third parties, are by no means decisive and may deflect attention from the proper inquiry. As counsel for the respondents submitted, such breaches, as well as matters such as ceasing to be a fit and proper person to hold the relevant authorisation/licence, conduct falling short of 'best practice', and some elevation of the level of risk, can exist without there being reason to believe that there has been a serious and imminent risk to air safety. It is, conversely, unnecessary that a serious and imminent risk should be attended by breach of express regulatory requirements, though such would be an unusual case. Further, the existence of regulatory requirements may provide evidence of the existence of a risk or its elevation if they are breached.
51 Reliance was placed by CASA on Stone J's observations in the Full Court decision of CASA No 1. Her Honour said (at [49] and [53]):
'In making its determination under s 30DE the Court must consider the conduct that is said to have occurred and assess that conduct against the criterion of "a serious and imminent risk to air safety". In assessing the conduct the Court is not in the position of having to formulate its own standards but may be guided by the detailed standards regulating air safety set out in the relevant regulations, Civil Aviation Publications and Civil Aviation Orders as well as other evidence before the Court.
…
The authorisation holder has an obligation not to contravene s 30DB and the Court must decide if he or she has done so or is likely to do so. It determines this question with reference to the standards laid down by the Act and the regulations. CASA's right to interfere with the authorisation holder doing that which is permitted by the authorisation is conditioned by the Court's determination under s 30DE(2).'
52 It seems to me that her Honour's reference to the 'other evidence before the Court' is significant. No doubt mandatory standards laid down by delegated legislation may be evidence of the existence of risks. But the judgment as to grounds for belief in a 'serious and imminent risk' remains squarely with the Court on all the material before it. I do not understand her Honour to have been saying more than this in the context of her concern to demonstrate the correctness of her conclusion that the legislation does not require the Court to perform a non-judicial function. It would, in my view, be wrong necessarily to equate what might be termed a 'serious breach' of a regulation with the existence of a serious and imminent safety risk.
53 There is something of a panoply of powers, quite apart from those given to CASA by Div 3A of the Act, designed to deal with risks in relation to aircraft and air safety. It is clear enough, I think, that Div 3A was intended only for cases where a responsible attitude to air safety demands immediate action protective of the public (including, in some cases, the holder of the relevant authorisation).
54 Since it is air safety Div 3A of the Act is concerned with, this implies that inevitable risks and risks commonly accepted by competent pilots in Australian flying conditions are not within the purview of the statutory notion of a 'serious and imminent risk'; if that were not so, much accepted light civil aviation might be required to cease.
55 So far as the present case goes, the test is, in my opinion, given appropriate meaning by asking: was there a really significant prospect that such risks of serious considerable harm as actually existed, in relation to the conduct complained of, would materialise? It seems to me that there were such risks and that choices and actions of the pilots contributed to such risks. If there were, on all the evidence, reasonable grounds for believing that there was actually a significant chance that those risks would eventuate, then CASA would have made out its case.