Civil Aviation Regulations - clause 2 of Part 1 of Schedule, Regs 5.04, 5.08, 6.05, 6.06

Minister for Health and Family Services v Bullivant's Natural Health Products Pty Ltd (1997) 49 ALD 438

Re Bullivant's Natural Health Products Pty Ltd and Minister for Health and Family Services (1996) 43 ALD 305

Re Wyatt and Civil Aviation Authority (1996) 41 ALD 381

DECISION AND REASONS FOR DECISION [1999] AATA 525

Decision The Tribunal affirms the decision of the respondent dated 17 June, 1998.

On 6 August, 1998, the applicant, Mr Lachlan Window, applied for review of a decision of the respondent, the Civil Aviation Safety Authority ("CASA") dated 17 June, 1998. CASA had decided to refuse to issue a medical certificate to Mr Window.

2. At the hearing, Mr Window represented himself and Miss Ford of counsel represented CASA. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with a function Capacity Evaluation Report by CRS Australia dated 28 March, 1999, a Psychology Report by CRS Australia dated 31 March, 1999, a report by Lawrie & Taylor Optometrists Pty Ltd dated 4 May, 1999, reports by Dr Christopher Alroe dated 21 September, 1998 and 13 January, 1999, an undated report by Mr Paul Robson, Methadone Coordinator with Queensland Health in Rockhampton, an admission form regarding Mr Window's admission to the Psychiatric Services at Illawarra, a report from Dr Christopher Alroe, a consultant psychiatrist, dated 22 February, 1998, and a statement by Mr Brian Fooks, a flying operations inspector, level 2, dated 29 April, 1999. Mr Window gave oral evidence in support of his case. Dr Alroe, Dr Francis Harding-Burns and Mr Brian Fooks gave evidence in support of CASA's case.

2. There are two issues in this case. The first is whether Mr Window meets the medical standard set out in clause 2 of Part 1 of Schedule 1 of the Civil Aviation Regulations ("Regulations") and referred to in paragraph 6.06(e) of those Regulations. The second is whether he meets the criteria referred to in paragraph 6.06(1)(c) which imposes certain obligations upon him to answer questions asked of him.

3. Section 20AB of the Civil Aviation Act 1988 ("Act") provides that a person must not perform any duty that is essential to the operation of an Australian aircraft during flight time unless the person holds a civil aviation authorisation or has been authorised to do so without that civil aviation authorisation. A civil aviation authorisation includes a licence (sub-section 3(1)). Part 5 of the Civil Aviation Regulations ("Regulations") sets out the qualifications of flight crew. Regulation 5.04 provides that, unless given permission to the contrary, the holder of a flight crew licence must not perform a duty authorised by the licence unless the person holds a current medical certificate. Flight crew licences include a student pilot licence and a private pilot (aeroplane) licence (regulation 5.08).

4. Medical certificates are the subject of Part 6 of the Regulations. A person may apply for one or more of a class 1, 2 or 3 medical certificate (regulation 6.05). A person may apply for a medical certificate under regulation 6.05. CASA must issue that medical certificate if, and only if, the person satisfies the criteria set out in regulation 6.06. Particular regard need be paid in this case to the following criteria:

"(c) the person answers all questions put to him or her by the designated aviation medical examiner, or medical practitioner, carrying out the examinations that are necessary for the examiner, or practitioner, to find out whether the person meets the relevant medical standard;

(e) the person meets the relevant medical standard."

5. In relation to a student pilot licence or a private pilot licence, the person wishing to hold that licence must hold either a class 1 or class 2 medical certificate (paragraph 5.04(3)(b)). The relevant medical standard in relation to a class 1 medical certificate is medical standard 1 and in relation to class 2 medical certificate is medical standard 2. The medical standards are set out in Schedule 1 to the Regulations.

6. Part 1 of that Schedule sets out the General Medical Requirements referred to in Part 2 (relating to medical standard 1) and Part 3 (relating to medical standard 2) of Schedule 1 to the Regulations. Medical standard 1 consists of all of the general medical requirements set out in Part 1. Medical standard 2 consists of the general medical requirements subject to certain modifications which are not relevant in this case.

7. Clause 2 of Part 1 relates to medical fitness and provides that:

"A person must have no established medical history or clinical diagnosis of:

(c) drug dependence or the use of illicit drugs; or

(d) any personality disorder of a significant degree; or

(e) a mental abnormality or neurosis of a significant degree;

that is likely to interfere with the safe exercise of privileges, or performance of duties, under the licence that the person holds, or has applied for, as the case may be."

8. Mr Window said that he started taking drugs when he was about 14 years of age. At that time, he used marijuana and LSD. By the time he was 17, he had stopped using marijuana and, by the time he was 18, he had stopped using LSD. He has not used either drug since then.

9. When he was 18 or 19 years of age, he continued, he started to use heroin. He described his use of that drug as "quite sporadic". He would use, abstain and use again. His periods of abstinence would last as long as six months. That cycle continued until he moved to Rockhampton three years ago. Mr Window said that he had first sought help for his drug taking when he was in second year of his studies for a Bachelor of Engineering (Electrical) at the University of Queensland. He said that his drug use was linked to his depression which was itself caused by his family situation.

10. After deferring his university studies, he lived briefly in Wollongong before moving to Rockhampton. He has family in Rockhampton and he was able to find what he described as "useful employment". He has started to study for a Bachelor of Information Technology and is a part time student of the University of Central Queensland.

11. Mr Window said that he had consulted Dr Hersey in Wollongong. At that time, he had been using heroin occasionally. At that time, he often suffered periods of overwhelming depression, he said. That was caused by his living with his mother and stepfather. It was not a very comfortable situation. At that time, he was using and then abstaining. He said that he almost enjoyed withdrawal which he found quite painful. It was a form of self punishment. He consulted Dr Slaughter in Brisbane as he was feeling very depressed and he was using heroin. Initially, he did not tell him about his heroin use but he did at a later time. Dr Slaughter diagnosed Mr Window as suffering from depression.

12. In cross-examination, Mr Window agreed with Miss Ford that he had "trashed" his mother's house before he left Wollongong. He said that it had occurred because he had a disagreement with his stepfather, they had a fight and he damaged the house. At the time, he had been intoxicated with LSD. Mr Window later agreed with Miss Ford that he had damaged the house when his mother and stepfather were out of the house. He said that the altercation was part of an ongoing domestic dispute.

13. When he moved to Rockhampton, Mr Window said in giving evidence, he consulted Dr Alroe in December, 1997. He did not seek methadone treatment before he lived in Rockhampton. With all drugs, Mr Window said, he gets to the stage where he says "Been there; got the T shirt" and he does not want to go back to them. Many of his friends have tried to stop drug taking and have failed. Mr Window said that he has not had much difficulty. Initially, he had a problem staying away from drugs altogether but, once he started on the methadone programme, he had been all right.

14. In cross-examination, Mr Window denied that he had entered the methadone programme because his mother had telephoned Dr Alroe. At an earlier time, she had telephoned Dr Slaughter, he said, but he was not aware that she had telephoned Dr Alroe.

15. Mr Window said that, since 26 February, 1998, he has attended the Alcohol, Tobacco and Other Drugs Service ("the Service") at Rockhampton on three occasions each week. He decided to go on the methadone programme after Dr Alroe mentioned it to him. Mr Window thought that the programme would be a useful tool to assist him to become a functioning member of society. It is not a detoxification programme. He had thought about giving up methadone but he is in "no hurry" to do so. Methadone has never been a detriment to his life. He will come to a point when he will come off methadone as he did with opiates.

16. Mr Window said that he started taking a dose of 40mg methadone in the morning but is now taking 55mg in the afternoon. In addition, he has been taking 60mg of Prozac each day. He feels quite energetic and is able to sleep at night as well as relax after work. He picks up his doses three times each week. Mr Window said that he is subject to random urine tests. Whether or not he is tested, thought Mr Window, depends upon how he looks. A sample is taken and sent to a pathologist. Since he has been attending the Service, he has had one urine test and that occurred in 1998. He explained that on the basis that he was the Service's most trusted patient.

17. Mr Window said that he sees Dr Alroe once each month. When asked whether he had experienced any episodes of depression in the last two years, Mr Window said that he was most depressed when his dog died. He now has a job, stable income and is able to buy what he wants. When he started to ride a motor bike, it freed him and allowed him to use his creative energy. He now has nice clothes and nice food and has been taken out of the situation that made him depressed. Mr Window is not currently in a relationship.

18. Mr Window said that he wanted to fly as he saw it as a possible career. Computers with which he works at the moment are "OK" but he works with them for the money. He has "just loved" his 30 hours of flying experience. It is "like riding a bike but better". He has a sense of "being one with aircraft" and has, he said, a "real affinity for controlling vehicles". He has only been in trouble with the police on one occasion. That occurred in March, 1998 when he rode his motorbike with an incorrect licence. He was fined $400.00.

19. He no longer drinks alcohol, Mr Window said. At the time he started on the methadone programme, he stopped drinking. He used to take benzodiazipines to help him get to sleep but stopped taking them at the same time. When taken together, alcohol, benzodiapathene and methadone impair function. In cross-examination, Mr Window was asked to explain why he had written in a letter to CASA dated 3 June, 1998 that he drank "only rarely (once a month or so)" (T documents, page 17). At the time he wrote the letter, he said, he had not drunk alcohol for about a month and thought that he could drink again. It has now been so long that he thinks it correct to say that he does not drink.

20. Once he had his first test flight, Mr Window said, he immediately made an appointment with Dr Thompson as he had enjoyed it so much. While he waited for his medical report, he went on another flight.

21. Dr Thompson, who is a designated aviation medical examiner, examined Mr Window for the purposes of the Medical Certificate on 23 January, 1998. Mr Window denied that he was either taking heroin or dependent on it at the time of the examination. He said that the last time that he had taken heroin had been at some time before he moved to Rockhampton. It would have been a couple of weeks before he left Wollongong. While in Rockhampton, he had taken only alcohol. When asked why he started the methadone programme when he was not taking heroin, Mr Window replied that he did so because of the symptoms of withdrawal. The chemical reaction stays in the body. As time passes, that reaction becomes increasingly hard to ignore. He kept feeling that he had to go out for heroin and then he knew that there was an answer and it was methadone. He did not call his taking methadone dependence, but withdrawal.

22. Miss Ford drew Mr Window's attention to Dr Alroe's letter of 15 April, 1998 (T documents, page 74). That letter was written in response to CASA's letter of 10 March, 1998 (T documents, page 75) and stated that Mr Window "... suffers from Opiate Dependence and Major Depression Recurrent.". He had suffered from the former for two years and the latter for five. It was not relevant to answer a question relating to the frequency of occurrence of these conditions, Dr Alroe said, as Mr Window is in remission. In response to a question asking for symptoms and signs, Dr Alroe wrote: "He has a craving for opiates. From time to time he suffers the typical neuro-vegetative features of depression now largely controlled by medication." (T documents, page 74)

23. In cross-examination, Mr Window said that Dr Alroe's report was a "retrospective report". When asked whether he told Dr Thompson that he suffered opiate dependence or had a craving for heroin, he replied that he was not opiate dependent and not craving. It was not relevant. Methadone does not affect functioning. In response to Miss Ford's question whether he was saying that he was opiate dependent at a later time or whether Dr Alroe was not correct, Mr Window said that he just had a feeling that this was not his lifestyle. Mr Window said that he has no thoughts of going back to heroin. He was never likely to face again the situation of a drunken mother, a violent stepfather and no money to be able to leave home. He was not likely to return to heroin if he were to lose his job as methadone is free and it does all for him that heroin did.

24. Also in cross-examination, Mr Window was asked about the answers which he had given to Dr Thompson during the medical examination. He had been asked whether he "... had suffered from any medical condition which may affect his/her ability to exercise the privileges of his/her licence?" (T documents, page 79). He had answered in the affirmative and Dr Thompson had made the following comments on Mr Window's health questionnaire and examination:

"1) Applicant has narrowing of (L) pelvi-uretanic junction, which is asymptomatic. He had one episode of (L) renal colic 2 years ago with uric acid stones being removed via cystoscopy. Since then has been on Allopuring and no further stones. Is on waiting list for surgical correction of narrowing. Enclosing copy of IVP July '96 showing no colecli.

2) Applicant was diagnosed with depression 2 yr ago. Has been on treatment with Prozac 20 mg (e tablets/day) since. At present being treated by Dr Alroe Psychiatrist Rockhampton. Denies any suicidal thoughts or tendency ever." (T documents, page 83)

25. Mr Window said that he was not suffering from any medical condition that was relevant to the skills of a pilot. The fact that he was suffering the neuro vegetative features of depression meant that he became tired and listless but did not mean that he became "a vegetable".

26. As a holder of a medical certificate, Mr Window said in cross-examination, he was aware that he had certain obligations to CASA. He was aware that he had to advise CASA of any change in his medical condition. In response to Miss Ford's proposition that he had not informed CASA that he was going on the methadone programme, Mr Window said that the letter sent to CASA by Dr Alroe dated 15 April, 1998 was intended to address his medical status (T documents, page 74). Dr Alroe and he had discussed it. He knew that Dr Alroe had written the letter in response to a letter by CASA dated 10 March, 1998 (T documents, page 75). CASA's letter had sought further information in view of the history of depression and ongoing therapy with Prozac which had been given at the medical examination with Dr Thompson. His medical status had changed in February, 1998 when he entered the methadone programme but he and Dr Alroe had discussed it for some time. They decided that the letter would be CASA's notification.

27. Mr Window said that he does not suffer from being light headed or from blurred vision. It is no different whether he is on methadone or not. He has no difficulty in judging distances.

28. He was aware, Mr Window said, that he needed a medical certificate to hold a student's pilot licence and for solo flight. Despite not holding a medical certificate, Mr Window said that he did fly solo and "proudly did" so in violation of the Regulations. He flew solo twice in July, 1998 and once in November, 1998.

29. Mr Paul Robson is the coordinator of the Service. In giving evidence, Mr Window said that he was checked for visible signs of drug use on each of his visits. Since February, 1998, he said, he has been drug free apart from methadone and Prozac. Mr Robson wrote an undated letter in support of Mr Window. That letter reads in part:

"Lachlan has been on the programme since 26/2/98. He has been stable medically from 2/52 following - Has attended All Sessions and is reviewed by his Prescriber monthly.

In all that time Lachlan has demonstrated his ability to function by holding down a full time job, completing University study and driving a powerful motorcycle with no undue consequences.

His ability to function whilst on the methadone treatment is superior to someone who utilises alcohol for recreational purposes or binge drinks. Overseas studies have shown that it is not Methadone Maintenance that affects performance but other Polysubstance use by people on the programme. As Mr Window's Urinanalysis demonstrates Mr Window doesn't use Alcohol or Benzodiazipines, so I believe is able to function and react appropriately. Areas like reaction times, intelligence, decision making, coordination & balance Lachlan while daily in his capacity as employee of the University, student, motorist. I have not heard of any incident to warrant concern.

I truly believe that if Lachlan Windows' case was reviewed on an individual level - on his capacity to meet the criteria for a pilot and not on a blanket decision regarding Methadone - he will meet your criteria.

Lachlan has been exemplary and I am sure that his future on Methadone will ensure that he is able to function well. His compliance to date and progress through treatment has impressed myself and his prescriber. I do not feel concerned that he may relapse - as there is nothing to indicate concern and he has shown a great degree of insight.

He is an intelligent young man who has taken steps to remedy past decisions and as such I feel deserves to be judged on his merits." (Exhibit E)

30. Mr Window said that flying is a very important release of his creative skills. He has never been a danger when he has been flying and there is no danger in his holding a medical certificate. He is, he said, a very fit person. This is confirmed, he added, by the letter Mr George Warner had written to CASA. Mr Warner is the Chief Flying Instructor and Chief Pilot of the Rockhampton Aero Club. At Mr Window's request, he wrote that:

"Lachlan commenced flying training in January of this year and I was unaware of this Medical problem until he mentioned it a few weeks ago. With regard to his Flying/Training there have been no problems. Lachlan has progressed at a slightly above average rate. His co-ordination and reaction times are good and he has been well in command of the situation during each training exercise.

In short had Lachlan not mentioned his Methadone treatment, I would not have perceived his situation. He presents as an above average student. ..." (T documents, page 18)

31. Ms Susan Earle, an occupational therapist with CRS Australia, prepared a functional capacity evaluation report after Mr Window had consulted her for an assessment of his fine motor coordination and manual dexterity (Exhibit A). She was aware that he had sought the assessment in relation to his fitness to hold a pilot's licence. Ms Earle carried out the 9 hole peg test and the Purdue pegboard. The tests demonstrated, she noted in her report of 28 March, 1999, that Mr Window had average abilities in fine motor speed and coordination. It was her opinion that Mr Window had the appropriate manual dexterity to operate an aircraft safely and efficiently.

32. Ms Karen Joncour, a psychologist with CRS Australia, prepared a psychology report dated 31 March, 1999. That report was prepared at Mr Window's request to assist in determining his fitness to obtain a pilot licence. He underwent a Wechsler Adult Intelligence Scale (3rd edition). That test comprises a number of tests. Ms Joncour's conclusions were:

"Mr Window presents with a superior level of intelligence overall. His strengths are in verbal comprehension; non verbal reasoning; attention to detail; visual-motor integration; attention; concentration and processing in memory. His weaknesses are on tests of mental processing involving comprehension of new information and visual scanning and tracking however his scores in this area are still within the average range when compared with a 35 to 44 year old age group. Mr Window is seeking further information about his visual abilities by consulting an Optometrist. In the writer's opinion testing has not revealed any major difficulties which would preclude him from operating an aircraft safely." (Exhibit B, page 3)

33. In relation to visual scanning and tracking, Ms Joncour had earlier said:

"Mr Window's weakness during the testing was on the Symbol Search test which assesses scanning speed and sequential tracking of simple visual information. Performance on this subtest may be influenced by visual discrimination and visual-motor coordination. It was noted that Mr Window made few mistakes on this test as he was careful when doing the test and as this test is a timed test it may have disadvantaged his score. See further information in paragraph 2 of page three regarding this test. Mr Window is planning to undertake an assessment with an Optometrist which would be likely to clarify this matter further." (Exhibit B, page 2)

34. Mr Cameron Taylor, an optometrist with Lawrie & Taylor Optometrists Pty Ltd, prepared a report dated 4 May, 1999 regarding Mr Window's vision with particular regard to his competence to fly aircraft (Exhibit C). The eye examination revealed normal results other than in relation to two matters. The first was a mild discrepancy in the inferior fields in a 120 point Field Screening. The second was a slightly larger left pupil than right pupil but Mr Taylor found all of Mr Window's responses to be normal.

35. Dr Alroe is a consultant psychiatrist and also oversees the methadone programme in Rockhampton. He is aware, he said, that 50% of patients on that programme are also taking heroin but, he said, that figure represents the situation in large centres such as capital cities. It is not, he continued, the same in regional centres as it is more difficult and more expensive to obtain heroin in those centres. Despite those difficulties, it is possible to obtain heroin in Rockhampton. Those who stay on the programme in regional centres tend to fix their lives up. In centres such as capital centres, those on methadone programmes tend to become the targets of dealers.

36. In his report of 15 April, 1998, Dr Alroe had described Mr Window's prognosis as "fair". He said that he had done so as the personality type of those who take heroin tends to be more unstable than those who do not. It is, therefore, more unpredictable and difficult to make a prognosis.

37. A principle behind the methadone programme is that the dose is sufficient so that the patient obtains very little benefit from injecting heroin. Dr Alroe said that heroin does not last as long in the body as some other drugs. Consequently, urine tests may not detect the drug and the patient's body must be examined for signs of use. Casual users do not show effects but regular users do. It is usually possible to tell if a person is a regular user as a regular intravenous heroin user becomes unstable, misses work, becomes more gaunt and shows effects from withdrawal. Experienced users can disguise the injection sites but disguise is only effective in casual users. Covert sites do not last long if a person is a regular user.

38. Dr Alroe agreed with a warning in MIMs that patients should be cautioned against driving and operating machinery that requires vigilance as methadone may produce orthostatic hypotension and drowsiness. After the first couple of weeks, however, a person adapts to it. Dizziness and light headedness may also develop in the early stages of methadone use but that also stabilises unless a person is abusing narcotics or obtaining additional methadone.

39. If a person has not abused heroin for two years, that is a sufficient period of time for him or her to have moved away from the culture where they took drugs, to have obtained regular work and to have relationships. A lot of people on methadone live normal lives and are engaged in such activities as driving buses.

40. Dr Alroe agreed with Miss Ford that a craving for opiates, which was largely controlled by methadone, could interfere with the safe flying of aircraft but it was more likely to do so in a situation in which the person was not stabilised. He was asked whether Mr Window's symptoms could interfere with his flying safely in view of the fact that he has been on the methadone programme for less than two years. Dr Alroe noted that Mr Window is one of the more stable people on the methadone programme and he rides a bike and holds a job. He is much less concerned about his flying in the case of a fairly stable person.

41. Dr Alroe agreed with Miss Ford that the visual reaction time can be impaired in the early stages of opiate dependency. He was not familiar with studies regarding the effect of opiate dependency on distance perception.

42. With regard to his letter of 15 April, 1998, Dr Alroe said that he was responding to CASA's letter of 10 March, 1998 but he made it clear to Mr Window that he, Dr Alroe, had to respond after he had obtained Mr Window's permission. He agreed with Mr Window that the letter would serve as notice to CASA of Mr Window's being on the methadone programme. Dr Alroe said that it was correct to describe Mr Window as having a craving for opiates as he had just started on the methadone programme. In the early months, craving is an issue.

43. Dr Alroe said that Mr Window did not mention his heroin dependency when he first consulted him in December, 1997. Mr Window did not want him to know about that and, in any event, he did not consult him about drug dependency. They discussed it after a "fair time". Mr Window's life was a little unstable. His heroin use was fairly casual but, as it became more difficult, he became a regular user and the methadone programme became an option. As he stabilised his life, it was logical that he stabilise his drug use. In the time Mr Window has been on the methadone programme, he has faced some fairly significant upsets in his life and he has not reverted to his former drug use. Mr Window is, Dr Alroe said, a lot keener to resort to psychotherapy for help than to drugs. Dr Alroe said that he and the staff at the Service decide whether a person should undergo a urine test. As Mr Window seems to be very stable, he is tested only infrequently.

44. Dr Alroe agreed with Miss Ford that a drug user's personality factors can make it difficult to predict whether or not he or she will relapse into drug use. There is, he said, a much higher level of personality dysfunction (or even unstable character traits) in people who use drugs (including alcohol) make it difficult to predict. In assessing predictability, it will be relevant to consider if a person shows a "fair level of hostility" to certain members of his or her family because of the way in which he or she has been treated.

45. In his memorandum dated 21 September, 1998, Dr Alroe wrote in response to a question as to the effect of opiates, such as methadone, on a person's coordination and reaction times. He said:

"Provided the dose of a long acting opiate is kept at a constant level, as has been the case with Mr Window, neuroadaption should take place to the extent that reaction times and coordination approach that of a normal person not taking the opiate. In addition to this there is no data available which suggests that a combination of Fluoxetine (Prozac) and Methadone significantly impairs coordination and concentration or reaction times." (Exhibit D)

46. Dr Harding-Burns is a physician who has over twenty five years' experience in drug dependency. He established drug departments at Sydney Hospital and Concorde Hospital and is the director of the Drug and Alcohol Unit at the Prince Albert Hospital. He has held a number of appointments both nationally and internationally in relation to drug dependence.

47. Dr Harding-Burns said that, if a person were taking methadone, he would agree that the person should be cautious when operating machinery or driving a car. A person could have adverse reactions to methadone. He said that one of the effects of methadone is constriction of the pupil of the eye. That constriction can interfere with vision and particularly with night vision. The constriction continues so long as a person is taking substantial doses of methadone. He agreed with Mr Window that it was possible that vision would not be affected but that it was most unlikely that he would not have very small pupils. In view of the report by Mr Taylor, the effect on Mr Window's vision is less apparent.

48. Dr Harding-Burns has reservations as to whether Mr Window will stay on the methadone programme. He based his reservations on the entries which Dr Alroe had made in his notes. Some of the intervals between visits amount to three months and no mention had been made in the notes as to whether or not Mr Window had undergone urine tests. When told that Mr Window had undergone one urine test since February, 1998 and it had been clear, Dr Harding-Burns said that he could not "over extrapolate" on just one test. The research indicates that notice should be taken of what people tell their doctor rather than spending time doing screening tests. He had also taken into account an episode of violence and Dr Alroe's statement in February, 1999 that he was going well so far.

49. A test indicated that, after they had been on a methadone programme for between 13 and 24 months, 40% of people who had used heroin and who were on an average dose of 42mg of methadone, take heroin again. Their use may not be great. By 24 months, 34% took heroin again. There was still a risk at 24 months and there was a bigger risk on a smaller dose of methadone below 60mg. There is a lower risk on higher doses in the order of 90mg. Other studies, however, indicate contrary results. Dr Harding-Burns said that he could not deny that the results might be different in a centre such as Rockhampton.

50. Dr Harding-Burns was concerned about Mr Window's ability to fly because, if he used heroin on top of methadone, he might suffer symptoms of the type described in MIMs i.e. respiratory depression, nausea, vomiting, dizziness, drowsiness, light-headedness, dry mouth and sweating and confusion. It is relatively early in Mr Window's treatment to make an assessment. He had more reservations about his flying than about his driving a motor vehicle as flying occurs in a three dimensional, rather than two dimensional space, and occurs at a higher speed.

51. Mr Window, Dr Harding-Burns said, is on a 55mg dose of methadone which is below the average maintenance dose. It was unlikely that any side effects would occur on that dose. Methadone is not likely to have a permanent effect on a person's eyes but can have an effect when that person is taking it. While it is possible that a person's vision will not be affected at all while he or she is taking methadone, Dr Harding-Burns continued, it is most unlikely that a person will not have very small pupils. In view of what he had been told of the optometrist's report in relation to Mr Window, he commented that the effect of methadone on Mr Window's vision is less apparent in his case. Dr Harding-Burns agreed with Dr Lawrence that the effects of methadone are not apparent if a person is stabilised on methadone but become apparent if he or she started taking heroin.

52. Mr Fooks, who has nearly forty years experience in both RAAF and civil aviation, set out the effects of impaired concentration, drowsiness and apathy on a person's ability to fly and the part which a person's vision plays in flying an aircraft. He wrote:

Vision is fundamental to safe flight, for the following reasons:

(a) In a global sense vision (not blurred) is essential to ensure aircraft separation whilst enroute and whilst operating in the circuit, arriving and/or departing from aerodromes. Much of the new regulatory base for flight safety is based on the 'see and be seen' philosophy. That is pilots must be capable of sighting (or 'acquiring') other aircraft operating in the same airspace in time to avoid collisions. The poorer the eyesight, the later will be acquisition with the concomitant increase in the risk. Many smaller and faster aircraft are difficult to acquire, even with good vision, with more than about 5 seconds reaction time to avoid a potential collision. Obviously, with only this very small time interval available in the optimum situation (ie with good vision), any reduction to this already narrow margin for any reason is unacceptable. Additionally, the primary means of flying smaller aircraft is by visual reference to the outside environment. This means that the pilot positions the machine with reference to the visual horizon in the first instance and then checks specific instrumentation in the cockpit to confirm that the aircraft is performing as required. There are specific limitations provided in the regulations which detail what the minimum environmental visibility is, for this kind of flight. Impaired vision would obviously have the same effect as operating in reduced visibility, which would comprise safety.

(b) Aircraft cockpits and equipment are based on visual indications and apart from some larger aircraft, most emergencies are presented through gauges (needles etc or digitally), which the pilot must be capable of reading quickly and accurately. 'Flight instruments' (ie aircraft control instruments) are also designed as visual instruments, and the pilot must also be able to read these quickly and accurately. Degraded vision would not permit this process. These instruments, even in the most basic aircraft are essential for safe flight as I have already stated they are used to confirm the aircraft's performance once the pilot has selected an attitude etc. by reference to the horizon. (ie. Visually).

(b) Vision is the master sense of our five senses and is essential for safe operation of an aircraft.

IMPAIRED CONCENTRATION, DROWSINESS AND APATHY

Impaired concentration, drowsiness and apathy, are in my experience, symptomatic of a fatigued person. For the very reason that these patterns reflect unacceptable conditions when operating aircraft, there have been specific limitations detailed in the legislation, which limits the number of pilot duty hours and flight hours permitted over specified periods, to avoid the possibility of their onset. Apathy alone, is indeed dangerous when operating an aircraft, as this trait leads to a lack of 'situational awareness' and circumstance. Knowledge of both, all the time, is essential for safe flight. Apathy leads to poor decisions or no decision, given a circumstance requiring some action. Drowsiness and impaired concentration similarly are unacceptable in a three dimensional environment, which demands total concentration and one being alert 100% of the time." (Exhibit 4)

53. As Mr Window submitted, the issue in this case is whether he should be issued with either a class 1 or a class 2 medical certificate and not whether or not he is a fit and proper person to be granted a student's pilot licence. As Miss Ford submitted, we are not considering whether Mr Window has flown without incident to date but are concerned with whether he will be able to operate an aircraft without incident in the future.

54. The first issue which we must consider is whether Mr Window meets the medical standard set out in clause 2 of Part 1 of Schedule 1 of the Regulations and referred to in paragraph 6.06(1)(e) of those regulations. In determining whether or not a medical certificate should be issued, we must first bear in mind the purpose of the Act and Regulations. In requiring that the holder of a flight crew licence must also hold a current medical certificate if he or she is to perform an act authorised by the licence, their purpose is to promote public safety. As the Tribunal recognised in Re Wyatt and Civil Aviation Authority (1996) 41 ALD 381 (Deputy President Chappell, Mr Coffey and Dr Thorpe, Members), a decision as to whether or not a medical certificate should be issued to a person requires a careful consideration of the interests of an individual whose professional career (or, in this case, personal aspirations) have been disrupted by a medical issue and the broader interests of the community in ensuring that public safety is maintained (see page 393).

55. In Re Wyatt, the Tribunal considered the manner in which it assessed the risk to public safety. Evidence had been led of the "1% Rule". The Rule has been described as setting:

"... a standard for the risk of pilot incapacitation to be less than one per cent per year which forms an acceptable component of the overall target risk of fatal accidents of 0.1 to 0.5 per million hours flown. This may be expressed more conveniently as a target risk of 10-7 per hour. ..." (Discussion Document entitled "Absolute, Attributable, & Polymorphic Risk in Aviation Certification: Developing the 1% Rule, delivered to the Second European Workshop in Aviation Technology and prepared by Douglas Chamberlain, Consultant Cardiologist to the CAA (UK))

56. The Tribunal in Re Wyatt considered the application of that Rule when it said:

"Despite those positive circumstances which favour the applicant's case the tribunal must ultimately be guided by the over arching consideration of the safety of air navigation and an associated assessment of risk. As has been apparent from the evidence presented to the tribunal the assessment of risk in this situation is neither an easy nor precise matter. The regulations themselves do not define the parameters of risk but in the circumstances CASA has relied, quite properly in the tribunal's view, upon the standards which are generally accepted in the international civil aviation industry. Those standards are based on statistical probabilities and relate risk to the chances of an air crew member becoming incapacitated during flight operations. In the case of multi crew operations, this risk must not be greater than one percent. Thus the tribunal must be satisfied, if it is to grant the special medical certificate requested by the applicant, there is not a risk that he would suffer total incapacitation of more than 1%." (page 393)

57. We do not consider that the principles in Wyatt's case are directly relevant to the case which we must consider. In Wyatt, the Tribunal considered sub-paragraph 3(b) of the medical standards. That provides that a person "... must have no established medical history or clinical diagnosis of ... epilepsy". There is no reference to the likely effect of epilepsy upon a person's ability to fly. The decision has been taken that a person with that history is not permitted to fly. That is not the case in relation to clause 2. That medical standard requires first a consideration of the history of drug dependence or use of illicit drugs and then a consideration of the likely effect of that dependence or use. Reference to the 1% Rule then becomes irrelevant, for Parliament has set the level of risk which is not acceptable and that is that the dependence or use is "likely" to interfere wit the safe exercise of privileges or performance of duties under the licence which is held or for which application has been made.

58. What is the meaning of "likely" in the context of the medical standards and of the Act and Regulations as a whole? That word has been considered in a number of cases in a variety of contexts and various interpretations have been adopted. A selection of those cases was considered in Re Bullivant's Natural Health Products Pty Ltd and Minister for Health and Family Services (1996) 43 ALD 305 at 317-320):

"(60) The words 'likely to ...' have been considered in different contexts in a number of cases and we were referred to Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 27 ALR 367; 42 FLR 331, McWilliams Wines Pty Ltd [1980] FCA 159; (1980) 33 ALR 394, Sheen v Fields (1984) 51 ALR 345; 58 ALJR 93, Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180; (1984) 55 ALR 25; 2 FCR 82 and; Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303.

(61) In the context of tariff classification under the Customs Act 1901 (Cth), the tribunal, of which one of us was a member, considered the meaning of the word 'likely' and some of the cases to which we were referred. That was the case of Re Vulcan Australia Pty Ltd and Comptroller-General of Customs [1994] AATA 150; (1984) 34 ALD 773; 20 AAR 116. Rather than analyse the cases once more, we will set out the passage from that case in which that was done (at 129-132):

'Beginning with the word "likely", it has been defined in the Shorter Oxford Dictionary, in so far as it is relevant, as:

'... having an appearance of truth or fact; seeming as if it would happen, or prove to be as stated; probably ...'

'... 1. probably or apparently going or destined (do, be, etc): likely to happen. 2. seeming like truth, fact or certainty, or reasonably to be believed or expected; probable ...'

The word 'likely' has also been considered in a variety of contexts. So, for example, in the context of a pilot's licence under the Civil Aviation Regulations 1988 (Cth), the tribunal has decided that, a case requiring consideration of whether the grant of a licence 'would be likely to affect the safety of air navigation' required consideration of whether there should be a 'significant and unacceptable risk to the safety of the public'. The acceptability of the risk was to be assessed with reference to the medical standards set in the Air Navigation Orders (see Re Denison and Civil Aviation Authority [1989] AATA 84; (1989) 19 ALD 607; 10 AAR 242, Deputy President Thomson, Members Dr Howell and Wilson).

It has been considered by the full court of the Federal Court in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 27 ALR 367; 42 FLR 331 (Bowen CJ, Evatt and Deane JJ), in the context of the Trade Practices Act and whether certain conduct had the likely effect of causing substantial loss or damage to the business of the appellant.

Bowen CJ, with whom Evatt J agreed, reviewed the authorities but was not prepared to prefer one interpretation of 'likely' to another. Deane J reviewed the authorities and concluded (at 347-8):

'The conclusion which I have reached is that, in the context of s 45D (1), the preferable view is that the word "likely" is not synonymous with "more likely than not" and that if relevant conduct is engaged in for the purposes of causing loss or damage to the business of the relevant corporation, it will suffice, for the purposes of the subsection, if that conduct is, in the circumstances, such that there is a real chance or possibility that it will, if pursued, cause such loss or damage. Whether or not such conduct, is likely (in that sense) to have that effect is a question to be determined by reference to well established standards of what could reasonably be expected to be the consequence of the relevant conduct in the circumstances. In determining the answer to that question, it will be relevant that the persons engaging in the conduct did so with the purpose of causing such loss or damage."

Franki J in Trade Practices Commission v TNT Management Pty Ltd (1985) 58 ALR 423; 6 FCR 1 was concerned with the meaning of the words "is likely to have" in connection with the words "significant effect on competition" as they appeared in s 45 (4) of the Trade Practices Act. His Honour's consideration took place in the context of penal proceedings brought under that Act. He canvassed previous authorities and said (at 49):

'In my opinion, it is desirable to note the warning given by Bowen CJ in Tillmanns Butcheries Pty Ltd v Australasian Meat Employees' Union, and not to place a gloss on the section by preferring one meaning of a particular case. If, however, I am required to adopt a view, I consider that the word in s 45 (2) now under consideration is to be read with due regard to the fact that it appears in a penal statute, that it is linked with the word 'significant' and that this means that, while the meaning need not be restricted to a situation where the odds are greater than equally balanced or somewhat less than equally balanced, the probability must be something not very far short of 'more probably than not', except in unusual circumstances ...'

The Tillmanns Butcheries case was again referred to by the High Court in Boughey v R [1986] HCA 29; (1986) 65 ALR 609; 161 CLR 10 (Gibbs CJ, Mason, Wilson and Deane JJ, Brennan J dissenting). The High Court considered s 157 (1) of the Tasmanian Criminal Code which provided that culpable homicide was murder if committed, inter alia, by means of an unlawful act or omission which the person '... knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person'.

'It is trite to say that the meaning of a word will be influenced by the context in which it appears. In my opinion the word "likely" in ss 156 and 157 of the Criminal Code Act means "probable" and not "possible". That is its natural meaning. It is the meaning which a draftsman, familiar with common law rules regarding malice aforethought, might be expected to attribute to it. In any case, if the expression were thought to be ambiguous, the doubt should be resolved in favour of the liberty of the subject. If "likely" in s 157 (1) (c) were regarded as meaning "possible", that provision would have a very drastic operation, since it would treat as murder a culpable homicide caused by an unlawful act which the offender knew would possibly cause death. A death in those circumstances might understandably be regarded as manslaughter, but it would be Draconian to call it murder.'

Mason, Wilson and Deane JJ referred to previous authorities including Tillmanns Butcheries and concluded (at 21-22) that, in their view, the word 'likely' was used with what they:

'apprehend[ed] to be its ordinary meaning, namely to convey the notion of -- a substantial or "real and not remote" -- chance regardless of whether it is less or more than 50%: cf Sheen v Fields Pty Ltd (1984) 51 ALR 345; 58 ALJR 93; at 95 and Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156; at 166-7.

There is a further reason why one should not superimpose upon the word "likely" in either s 156 (2) or 157 (1) of the code refinements of meaning which the word does not convey as a matter of ordinary language. A basic objective of any general codification of the criminal law should be, where practicable, the expression of the elements of an offence in terms which can be comprehended by the citizen who is obliged to observe the law and (where appropriate) by a jury of citizens empanelled to participate in its enforcement. History would indicate that the codifier will never achieve the clarity and completeness which would obviate any need for subsequent interpretation or commentary: see Jolowicz, Historical Introduction to the Study of Roman Law (1939), pp 491-2; Gray, The Nature and Sources of the Law (1909), pp 176-7. The courts should, however, be wary of the danger of frustrating that basic purpose of codification of the criminal law by unnecessarily submerging the ordinary meaning of a commonly used word in a circumfluence of synonym, gloss and explanation which is more likely to cause than to resolve ambiguity and difficulty. To bury the word "likely" in s 157 (1) of the Code beneath the gloss of "more likely than not" and the explanation of "a more than 50%" or an "odds on" chance would be to succumb to that danger. It would also, in our view, be to attribute to the word "likely" a requirement of a specific degree of mathematical probability which the word does not convey either as a matter of ordinary language or in its context in s 157 (1) of the Code.'

Both Tillmans Butcheries and Boughey's case were referred to by Gummow J in Poignand v NZI Securities Australia Ltd [1992] FCA 369; (1992) 109 ALR 213; 37 FCR 363. The case concerned, in part, the standing of unit holders to bring a representative action seeking damages, declaratory relief, an injunction and certain other orders. Their action was brought pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) and required consideration of s 87 (1A) of the Trade Practices Act. Section 87 (1A), wrote Gummow J (at 371):

'... authorises applications of persons who have suffered or are "likely to suffer" loss or damage by conduct of another person that was engaged in contravention of the relevant provisions of the Trade Practices Act. The phrase "likely to" is susceptible of various meanings, and takes its colour from the statutory consent. It may indicate a degree of contingency falling short of probability. This and other shades of meaning are discussed in Boughey v R, in the context of s 157 (1) of the Criminal Code (Tas).

One evident purpose of the inclusion of the phrase "likely to suffer loss or damage" in s 87 (1A) is to afford the opportunity to an applicant to move quia timet by analogy to the obtaining of injunctive relief against the commission of apprehended wrongs. Section 87 (1A) is expressed as being without limit to the generality of s 80. The power of the court to grant prohibitory or mandatory injunctions may be exercised whether or not there is an imminent danger of substantial damage to any person: see s 80 (4), (5).

In Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union at 346-8, in a passage referred to in Boughey at 20, Deane J discussed the sense to be given to "likely" in s 45D of the Trade Practices Act. His Honour held that it would be sufficient for the purposes of that provision if the conduct in question was such that, in the circumstances, there was a real chance or possibility that if pursued it would cause loss or damage.

As matters stand on the present motion, I accept the submission by the applicant that there is a real chance or possibility that the unit holders are likely to suffer loss or damage by the conduct complained of against the respondents. It may be that some lesser degree of contingency will suffice for s 87 (1A) and for s 45D. But that is a question for another day.'

His Honour did not need to consider the matter further for he found that the applicants had already sustained loss or damage:

(62) In Krieg's case, to which we were referred, Bray CJ considered the meaning of the word 'likely' in the context of whether an employee of the respondent had reasonable cause to believe that the doing of certain work was likely to interfere with or damage property under the control of the Postmaster-General. Bray CJ said, in part (at 312-3):

'As I have said, the ordinary and natural meaning of the word is synonymous with the ordinary and natural meaning of the word "probable" and both words mean, to adopt the expression of Lord Hodson in the passage previously quoted, that there is an odds-on chance of the thing happening. That is the way in which statutes containing the words have usually been construed: see, for example, Re Bayer Products Ltd's Application [1947] 2 All ER 188, per Lord Green MR at 191, per Asquith LJ at 193; Dowling v South Canterbury Electric Power Board [1966] NZLR 676; Transport Ministry v Simmonds [1973] 1 NZLR 359. Particularly is this so when the statute is a penal statute (see; Transport Ministry v Simmonds [1973] 1 NZLR 359), or, I think, where, as here, an additional liability in tort beyond the common law liability is being imposed.

I think that is the meaning which should be attached to the word "likely" in subs (1) (a). It is the natural and ordinary meaning and there is nothing to show that another meaning was intended. Like the learned special magistrate, therefore, I think that "likely" in the subsections means "probable" and I think that that means that there is a more than fifty per cent of the thing happening.'

(63) It appears from the cases that the word 'likely' may have different meanings depending upon its context. Therefore, we must bear in mind the object of the Act. Section 4 of that Act provides:

'The object of this Act is to provide, so far as the Constitution permits, for establishment and maintenance of a national system of controls relating to the quality, safety, efficacy and timely availability of therapeutic goods that are:

(a) used in Australia, whether those goods are produced in Australia or elsewhere; or

(64) The Act contains some penal provisions but, the listing provisions with which we are concerned are not penal provisions. They are provisions which are part of the Act's overall scheme to establish standards of manufacturing, production and distribution of therapeutic goods in a manner which ensures that they are of a certain quality, safe, efficacious and available in a timely fashion. A provision such as reg 6A is one part of the scheme's attempts to ensure safety of therapeutic goods. Given that, we have concluded that we should adopt the meaning of 'likely' as 'probable', 'as seeming as if it would happen' or 'a substantial or real and not remote chance'. We have concluded that it does not, in the context of the Act and the non-penal provision with which we are concerned, mean 'more likely than not', 'a more than a 50% chance of a thing happening' or 'odds on'. This conclusion is consistent with cases such as Tillmans Butcheries and Boughey's case. It is not consistent with Krieg's case but we distinguish that case on the basis that it was concerned with the imposition of an additional liability. That is not so in the context in which we are considering the word." (pages 317-320)

59. Bullivant's case was taken on appeal. One of the issues was whether the labelling, packaging or presentation of certain therapeutic goods was likely to result in their being mistaken for, or confused with confectionery or toys. Merkel J considered a submission that the word "likely" should have meant something less than found by the Tribunal in the concluding paragraph. He rejected the submission saying that it "impermissibly substitutes notions of possibility for that of likelihood" (Minister for Health and Family Services v Bullivant's Natural Health Products Pty Ltd (1997) 49 ALD 438).

60. Even having regard to the object of the Act with which we are concerned and of the medical standards, it seems to us that to adopt the 1% Rule in considering whether Mr Window's history of drug dependence and use of illicit drugs is likely to have the prescribed effect would be to adopt notions of possibility. None of the authorities in considering "likely" in a range of contexts has gone that far. Having regard to the need to protect public safety while having regard to a person's entitlement to pursue his or her ambitions, we consider that the word "likely" means "a substantial or real and not remote chance". That is not a matter which can be assessed on statistical likelihood and certainly does not mean "more likely than not", "odds on" or "a more than 50% chance of a thing happening". To adopt those latter three meanings would, in our view, be to place too little weight on the protection of public safety and too much on an individual's entitlements.

61. Turning to Mr Window's case, we are satisfied that he currently has a drug dependence upon methadone. He readily acknowledges that he is taking methadone under a methadone programme. It is a drug of dependence and Mr Window is dependent upon it. That is clear both from the relevant entry in MIMs and from Dr Alroe's evidence.

62. We are also satisfied on the basis of his own evidence that Mr Window has used illicit drugs. On the basis of his own evidence, we are satisfied that he has used LSD, marijuana and heroin in the past. He has said that he has not taken them for some time. In particular, he said that he has not taken heroin since he started on the methadone programme in February, 1998 and that he had not taken it for some two or three months before that time. We recognise that Mr Window is a proud young man who places great store in his word. At the same time, we find that he is a person who feels, at least in some circumstances, that he is entitled to ignore rules, regulations and requirements set by those in authority if he makes an assessment that he is presenting no danger to himself or the community. In that regard, we refer particularly to his flying a plane when he did not hold the appropriate civil aviation authorisation or a medical certificate. We refer also to what we find to be his failure to notify Dr Thompson of his suffering from heroin dependency during the examination on 23 January, 1998. On the basis of his own evidence, we are satisfied that Mr Window craved heroin at this time and so continued to be dependent on heroin before he went on the methadone programme. We do not accept his explanation that there was no need to reveal his dependency as it would not affect his ability to fly. It is reasonable to expect that a person would consider that heroin dependency could have such an effect and that he or she should reveal it.

63. Although these are Mr Window's attitudes, we do not consider that those attitudes, without more, mean that we should form the view that his word cannot be relied upon regarding the issue of his using heroin. Indeed, taking account of the evidence of Dr Alroe that there is no reason to think that he has been taking heroin, we have formed the view that, on the balance of probabilities, he has not taken heroin since February, 1998.

64. That, however, is not an end of the matter. We must consider whether the history of drug dependency and use of illicit drugs which we have found that he has is likely to interfere with the safe exercise of privileges, or performance of duties, under the licence that he has, or has applied for.

65. Mr Window submitted that we should confine ourselves to considering the evidence that he has abstained from taking heroin for the past fifteen months or so. He urged us to consider as irrelevant the wider evidence given by Dr Harding-Burns and of studies regarding the likely resumption of heroin use by a person on a methadone programme. We do not, however, consider such wider evidence to be irrelevant. Clause 2 of the general medical requirements of the medical standards refers to the likelihood of interference with the safe exercise of privileges or performance of duties under the licence Mr Window has or has applied for.

66. In this case, the likelihood of Mr Window's history of drug dependence and use of illicit drugs interfering is determined by two matters. The first is the effect upon his day to day functioning. We accept that Dr Alroe considers that it will not, and we accept also, that there is evidence that Mr Window has average abilities in fine motor speed and coordination, that his vision is within normal limits and that, on psychological testing, he presents with a superior level of intelligence overall.

67. That brings us to the second matter. That is the likelihood of Mr Window's adhering to the methadone programme and of his not resuming the use of heroin while on the methadone programme. Were he to take heroin while taking methadone, we are satisfied on the balance of probabilities, that Mr Window would suffer symptoms of respiratory depression, nausea, vomiting, dizziness, drowsiness, light headedness, dry mouth, sweating and confusion. That finding is based on the evidence of Dr Harding-Burns. Given the evidence of Mr Fooks of the need for visual acuity and concentration in a pilot, it follows that such symptoms would interfere greatly with the ability of a person to perform the functions of a pilot's licence, whether it be a private pilot licence or a student licence.

68. The likelihood of Mr Window's taking heroin while on the methadone programme cannot be assessed solely by the fact that we are satisfied that he has not taken any in the past fifteen months. We accept that Dr Alroe has said that Mr Window has a good prognosis but we must look at the wider evidence of the likelihood of heroin use by people on a methadone programme. That is in the evidence of Dr Alroe and Dr Harding- Burns. We must view that evidence in light of the fact that Mr Window has only abstained from taking heroin for the past fifteen months or so. Although we recognise that the studies of Dr Harding-Burns have their limitations in that they are not directed to heroin use in regional centres, they can be regarded as an indication. On the basis of his evidence we find that of those living in capital cities, 40% of people who have used heroin and who are on an average dose of 42mg of heroin, use it again. Mr Window is on a 55mg dose of heroin but we also accept that even after 24 months, the risk of his using heroin is at least 34% as his dose of methadone is less than 60mg. It may be that the risks in a centre such as Rockhampton are lower but, we find, those risks are still substantial or real and not remote. With only fifteen months of abstinence, we have concluded that it is far too early to determine whether Mr Window falls outside the group of people who are likely to use heroin again.

69. Taking these considerations into account, we have formed the view that there is a substantial or real, and not a remote, chance, and so it is likely, that Mr Window will use heroin again. There is, therefore, a substantial or real, and not a remote, chance, and so it is likely, that his drug dependence and history of the use of illicit drugs will interfere with his functioning including his vision and his concentration. They are, therefore, likely to interfere with the safe exercise of privileges, or performance of duties, under the licence that Mr Window holds or has applied for.

70. It follows from our conclusion that Mr Window does not meet the general medical standards set out in Part 1 of Schedule 1 and so does not meet the requirements of either medical standard 1 or 2. It follows that he does not meet all of the criteria set out in regulation 6.06 and so a medical certificate cannot be issued to him.

71. That conclusion is enough to determine the application but we should consider the second issue briefly. That is whether Mr Window answered all questions which were put to him by Dr Thompson in carrying out the examination and which were necessary to find out whether he met the relevant medical standards. We have already alluded to this (paragraph 62 above). The general medical requirements of the medical standards clearly refer to drug dependence or the use of illicit drugs. Mr Window has not sought to say that he was not aware of them (and we are not convinced that this would be relevant) but has asserted that his history of drug dependence and use of illicit drugs does not affect his ability to fly an aeroplane. Consequently, he said, he was not required to reveal that history to Dr Thompson.

72. An affirmative response was given by Dr Thompson to a question whether "... he had been admitted to a hospital or suffered from any medical condition which may affect his/her ability to exercise the privileges of his/her licence" (T documents, page 79). Two conditions were referred to but only one had relevance to this case. That was the disclosure by Mr Window of his depression. No reference was made to his use of illicit drugs. At the time he underwent the medical examination, he had not commenced the methadone programme. Mr Window signed a declaration that the statements made were, to the best of his knowledge, complete and correct (T documents, page 84). That declaration followed immediately after a note to the effect that withholding relevant information or making false or misleading statements for the purpose of obtaining a medical certificate was an offence under the Act.

73. There is no evidence of the questions which Dr Thompson actually asked Mr Window during the examination. The requirement of paragraph 6.06(1)(c) is that the person answer all questions put to him by the medical examiner that are necessary for that medical examiner to find out whether the person meets the relevant medical standard. We do not know precisely what questions Dr Thompson put to Mr Window but, in view of the statement he signed on the report of the medical examination, we are satisfied on the balance of probabilities, that he at least asked him the question as it appears on the form.

74. The question on the form was not as Mr Window has interpreted it. It was not whether his history did affect his ability but whether it might do so. It is reasonable to expect a person to be aware that a history of drug dependency or the use of illicit drugs may affect his ability to function. In our view, that is information of the type that should be revealed when confronted with that question. Not to reveal it is to fail to answer the question put to him. It follows that we do not consider that Mr Window satisfies the requirements of paragraph 6.06(1)(c) of the Regulations and is not entitled to a medical certificate for that reason.

75. For the reasons we have given, we affirm the decision of the respondent dated 17 June, 1998.

I certify that the seventy-five preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President), Mr J D Horrigan (Member), and Dr J M Lawrence (Member)

Signed: ..............................................