1. MEMORANDUM OF ADVICE ON STATUTORY INTERPRETATION OF CIVIL
AVIATION REGULATIONS 1988 (CTH), 298A(1) IN CIVIL AVIATION SAFETY
AUTHORITY V MARSH [2014] FCA 1253
Shaikh Hafizur Rahman
I INTRODUCTION
1. Justice Collier determined to set aside the decision of the Administrative Appeals
Tribunal (AAT) which found that Mr Kyle Marsh did not breach Civil Aviation Regulations
1988 298A(1) when he provided a document containing suggested questions and possible
answers to another person for the flight planning segment of Air Transport Pilot Licence
(ATPL) examination. It has been observed that deputy president PE Hack SC and Justice
Collier differed in subjective view of the statutory interpretation of the regs 298A(1).
Contravention of regs 298A(1)(c) and 298(A)(1)(f) by Mr Marsh raised by Civil Aviation
Safety Authority (CASA) before AAT was set aside by PE Hack SC. Wider interpretation of
the word ‘examination’, persuasive approach and sequential order of the statute by Justice
Collier substantiated grounds of appeal by CASA on the failure by the tribunal of finding
actions of Mr Mash contravening sub reg 298A(1)(c)(iii) and regs 298(A)(1)(e). The decision
of AAT was then set aside and was sent back to the tribunal to decide in accordance with
the respective statutory interpretation. This memorandum of advice provides another
perspective and differentiated opinion on the statutory interpretation of regs 298A(1) and
its application while deciding the outcome of the actions of Mr Kyle Marsh in Civil aviation
authority v Marsh [2014] FCA 1253.
II FACTUAL BACKGROUND
2. The theory part of the ATPL examination comprises seven separated parts. These
separated parts are examined separately by a third party appointed by CASA. A candidate
is permitted to take up to three years from the first attempt to complete all seven
examination. [1]
3. The flight planning segment of the ATPL examination required students to answer
17 questions randomly selected out of 105 possible questions. The question bank remained
unchanged since April 1994. The examination was undertaken online at a secure and
controlled premises under the observation of external provider. A candidate was allowed
limited materials during the examination which were scanned thoroughly during entering,
residing and existing the examination rooms. [2]
1 Kyle Marsh v Civil Aviation Safety Authority [2013] AATA 729,5 [8].
2 Ibid [9].

2. 4. By 2011, there were numerous documents circulating widely amongst students as
selected study materials for exam preparation that provided answers to many of the
possible 105 questions. One of the documents containing four pages were prepared
intelligently with possible coded answers to 33 possible questions appeared to be able to get
incorporated in an allowed examination room material, Boeing 727 handbook. The
matching of borders of pages from the handbook with the borders of the four pages provided
evidential proof to that suspicion. It was concluded that these four pages were designed to
be taken into an examination room. [3]
5. A whistle-blower forwarded those documents to CASA in September 2012 and
alleged that usage of ‘cheat sheets’ to pass examination was ‘common knowledge’. Mr. Kyle
Marsh was apparently found to email those four pages to another person named ‘N’ on 7
July 2012 as an attachment. Mr. Marsh accepted the allegation of sending that email and
denied having used the pages during his examination in October 2011. [4]
6. Based on presented evidence, ‘N’ successfully completed the examination in March
2011. [5]
7. By letter of 14 February 2013 CASA gave the notice of contravention of regs
298A(1)(e) to Mr. Kyle Marsh regarding his conduct of giving (or receiving?) of answers to a
Mr Marsh(?) on 21 March 2012. [6]
8. Mr. Marsh wrote to CASA on 8 April 2013. On 17 May 2013, CASA sent a further
notice of contravention of regs 298A(1)(c) to Mr. Marsh regarding his conduct of giving
information regarding examination paper to another person, ‘N’, on 7 July 2012.[7]
9. Following an investigation on 8 August 2013, the delegate of CASA notified Mr.
Marsh regarding the suspension of his student, private and commercial pilot (aeroplane)
licence in accordance with regs 269(1)(c) for 6 months.[8]
10. An application was lodged by Mr. Marsh in protest of the CASA’s decision at the
Tribunal on 15 August 2013. [9]
11. On 2 October 2013, the decision of CASA was ordered to be set aside by the
Tribunal. [10]
3 Ibid [9], 6 [10].
4 Ibid 7 [12].
5 Ibid 8 [16].
6 Ibid 7 [14].
7 Ibid 8 [15]-[16.
8 Ibid 8 [17].
9 Ibid.

3. 12. CASA appealed against the decision of the tribunal at the Federal Court of
Australia. On 21 November 2014, justice Collier accepted the appeal on the ground of
contravention of sub reg 298A(1)(c)(iii) and 298(A)(1)(e) by the conduct of Mr. Marsh. [11]
III STATUTORY INTERPRETATION
13. The Civil Aviation regulations 1988 (Cth) was made under the Civil Aviation Act
1988 (Cth) following the Statutory Rules158, 1988.
298A Cheating by examination candidates
(1) CASA may give written notice to a person who attempted a prescribed
examination if it believes on reasonable grounds that he person has committed
any of the following without CASA’s permission:
(a) copied any part of the examination paper;
(b) removed:
(i) any part of the examination paper; or
(ii) a copy of any part of the examination paper;
From the place where the person attempted the examination;
(c) given to another person:
(i) any part of the examination paper; or
(ii) a copy of any part of the examination paper; or
(iii) any information about the questions contained in the
examination paper, being information that might give anyone
an unfair advantage in the examination;
(d) before the examination-knowingly received from another person, or
otherwise knowingly obtained possession of:
(i) any part of the examination paper; or
(ii) a copy of any part of the examination paper; or
(iii) any information about the questions contained in the
examination paper, being information that might give the
person an unfair advantage in the examination;
10 Ibid 15 [35].
11 Civil Aviation Safety Authority v Kyle [2014] FCA 1253.

4. (e) before or during the examination-knowingly received from another
person, or otherwise knowingly obtained possession of:
(i) any part of the model answer; or
(ii) a copy of any part of the model answer; or
(iii) any information about the content of the model answer;
(f) during the examination:
(i) helped another person to complete any part of the examination;
or
(ii) received help from another person to complete any part of the
examination; or
(iii) used any material or aid that CASA does not permit to be used;
or
(iv) read the examination work of another person attempting the
examination;
(g) caused or assisted the commission of, or attempted, any act referred to
in paragraph (a), (b), (c), (d), (e) or (f). [12]
14. Deputy President PE Hack SC rejected conducts of Mr. Marsh contravening sub reg
298A(1)(f)(iii) on the basis of literal interpretation of statutory in respect with facts and
decorum of the events. “While I acknowledge the force of the argument I am not satisfied
that Mr Marsh did cheat in the manner alleged. I consider that the scrutiny of the
invigilator was such as to have made it impossible for him to have cheated.” [13]
15. The decision of his honour to set aside the allegation of the contravention of reg
298A(1)(c)(iii) invited golden rule of statutory interpretation based on language and
grammatical comparison of reg 298A(1)(c)(iii) and reg 298A(1)(d)(iii) on the intention of the
use of the words ‘anyone’ and ‘the person’. Interpretation of the word ‘examination’ was
specifically pointed to a space and time based particularity. [14]
16. Justice Collier took a purposive approach of statutory interpretation while differing
from the decision of deputy president PE Hack SC of Administrative Appeal tribunal and
favoured the view of Senior member Mr Egon Fice in Confidential v Civil Aviation Safety
Authority [2013] AATA 927. [15]
12 Civil Aviation Regulations 1988 (Cth) 298A(1).
13 Marsh [2013] AATA 729,11 [25].
14 Idid 13 [30].
15 Civil [2014] FCA 1253, 8 [30].

5. 17. The centre point of the difference of statutory interpretation is concentrated on the
linguistic meaning of the word ‘examination‘ in regs 298A(1)(c). ‘The starting point in
interpretation of legislation must always be the text, but context and purpose are also
vitally important even in cases where the text does not appear on its face to be
ambiguous.’[16] In consistent with the view of Senior member Egon Fice in Confidential v
Civil Aviation safety Authority [2013] AATA 927, justice Collier has defined ‘the
examination’, ‘the examination paper’ and ‘the model answer’ in a broader and wider
spectrum which contains all the cyber examination relating to ATPL and all the questions
and answers in the cyber questions bank (107 questions) for the purpose of the statutes.
Sequential order and structure of regs 298A(1) ‘Copying’, ‘Removing’, ‘Giving’, ‘Knowingly
receiving’, ‘Before or during the examination receiving information’ and ‘during the
examination helping’ as a whole supported broader interpretation of the statute to prevent
cheating by the candidates.[17]
18. Applying principles of sequential order in the interpretation of statutory provides
broader meanings to the regulation. The regulation ‘298A Cheating by examination
candidates’ resides in Volume 3, Part 19-Miscellaneous of the Civil aviation regulation
1988 (Cth). The immediate below regulation is ‘298B Examination misconduct by
persons other than examination candidates’. [18] This can be submitted that targeted
group for the implementation of the regulation 298A is limited with in the ‘examination
candidates’ and regulation 298B is for ‘persons other than examination candidates’.
19. In the similar manner of statutory interpretation, regulation 298A regulates
behaviour of candidates ‘who attempted’ or will be ‘attempting’ a ‘prescribed examination’.
In details, regs 298A(1)(a), 298(A)(1)(b) and 298(A)(1)(c) applies to those candidates who
‘attempted’ and 298A(1)(d), 298(A)(1)(e) and 298(A)(1)(f) applies to those who will be
‘attempting’ or are ‘attempting’. Reg 298A(1)(g) appliesto all the candidates. [19]
20. Specific clarification of the meaning of the word ‘another person’ in regs 298A(1)(c) is
required. This has been submitted by CASA that ‘another person’ might not be required to
be a ‘candidate’ in the prevention of spread of information about the questions. [20] Reg
298A(1)(c)(i) and 298(A)(1)(c)(ii) relates to that interpretation whereas reg 298A(1)(c)(iii)
relates to a ‘candidate’ who will receive an unfair advantage in the examination. ‘Anyone’
refers to a candidate who will gain ‘an unfair advantage in the examination’ in describing
the nature of ‘any information about the questions’.
21. Regs 298A(1)(d) and 298A(1)(e) includes ‘knowingly’ received or ‘knowingly’
obtained. ‘Knowingly’ adds a pre knowledge state of mind as an intrinsic characteristic of
16 Ibid 9 [32].
17 Ibid 12 [40].
18 Civil Aviation Regulations 1988 (Cth).
19 Ibid.
20 Civil [2014] FCA 1253, 5 [21].

6. information received or obtained possession of constructing ‘any part of the examination
paper’ or ‘any copy of any part of the examination paper’ or ‘any information about the
examination paper’.
IV OPINION
22. Due to the integrity and robustness of the APTL examination process regulated by
CASA, It was impossible for any exam candidates to know that there were only 107
questions in the cyber exam questions bank. [21] Reasonable doubts remained in the
factual evidence on the dates of the alleged conducts of the contravention. The investigated
evidence of ‘cheat sheets’ containing 33 of the 107 questions raised reasonable doubts of the
source of that information taken out of the examination room from the examination paper.
It was not proved that Mr Marsh himself ‘copied’ and ‘removed’ that information out of the
examination room. The robustness of the examination system made it impossible to carry
any information out of the examination room other than memorising those questions by the
candidate. [22]
23. It was presented to CASA that many aeroplane pilot students and examination
candidates were using selected study materials for exam preparation to pass the
examination. [23] This can be submitted that the ‘cheat sheets’ Mr Marsh sent to ‘N’ was
one of those selected study materials which he received at some point before the exam on 12
October 2011. Mr Marsh was not aware of the coincidental connection of the 8 out of 17
Questions from the ‘cheat sheets’ in the examination when he received those selected study
materials. Contravention of regs 298A(1)(a), 298(A)(1)(b), 298(A)(1)(d), 298A(1)(e) and
298(A)(1)(f) based on presented facts and the above statutory interpretation remains
doubtful.
24. Maintaining the same scenario of selected study materials for exam preparation, the
submission of exchange of study materials between students and exam candidates nullifies
the well-argued and statutory interpreted contravention of regs 298A(1)(c).
25. Civil aviation regulations 1988 (Cth) made under Civil aviation acts 1988 (Cth) gave
CASA authoritative and administrative power of regulating licencing of pilots and alike to
an expected standard. Creation of regs 298A(1) exclusively dealing with cheating of
examination candidates to prevent cheating in the examination to maintain high standards
and required proficiency of the licensee. To achieve that purpose, the regulation bestows
responsibility on both the exam candidates and the exam regulator appointed by CASA.
Interpreting the statute in a way to prevent communications between students on exam
preparation or advice of exam suggestions for future candidates puts a barricade in the
educational, social and professional growth of the pilot licensee community. It is a common
21 Marsh [2013] AATA 729,5 [9].
22 Ibid.
23 Ibid 7 [12].

7. practice of students to research, collect and create selected study materials for exam
preparation in any educational environment. The ATPL exam for an aviation student does
not differ in that respect. Only the standard of the examination can regulate and maintain
the high standard and proficiency of the pilot licensee which is the main goal of the statute.
Constraint of finite and unchanged database of cyber examination to 107 limited questions
for more than 17 years has caused and resulted the coincidental connections between the
exam questions database and the selective study materials for exam preparation and
originated the scenario of alleged contravention of the regulation.
25. The limitation of the unchanged finite question database create statutory dilemma
for candidates attempting second time for the same examination being in the risk of
contravention of the regs 298A(1)(d) and by the interpretation of ‘Before or during the
examination….., or otherwise knowingly obtained possession of:……’.
26. It was never envisioned by the Civil aviation regulation 1988 (Cth) that the question
bank would remain unchanged for 17 years. The regulation never limited CASA to update
and implement rigorous standard of ATPL examination to maintain proficiency and high
standard of licensee in the aviation community.
V CONCLUSION
27. This memorandum of advice provide another perspective of conducts contravening
the regulation 298A(1) in the light of the mentioned approach of statutory interpretation.
The above discussion aids in the favour of Mr Marsh being doubtfully prosecuted for taking
part in a ‘common practice’ and for the callousness of ‘unchanged questions’ which
otherwise was the responsibility of the regulator to maintain high standard.
VI BIBLIOGRAPHY
A Legislations
 Acts Interpretation Act 1901 (Cth) s 15AA.
 Civil Aviation Act 1988 (Cth) s 9A.
 Civil Aviation Regulations 1998 (Cth) 298A, 298B
 Criminal Code Act 1995 pt 2.2 -2.3.
 Legislative Instruments Act 2003 (Cth) s13.
B Cases
 Civil Aviation Safety Authority v Marsh [2014] FCA 1253.
 Marsh v Civil Aviation Safety Authority [2013] AATA 729.

8.  Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 32.
 Confidential v Civil Aviation Safety Authority [2013] AATA 927.
 Air Link Pty Ltd v Paterson (2005) 223 CLR 283.
 Austin v The Commonwealth of Australia (2003) 215 CLR 185.
 Boral Besser Masonry Ltd v Australian Competition and Consumer Commissioner
(2003) 215 CLR 374.
 Commonwealth v Baume (1905) 2 CLR 405.
 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147
CLR 297.
 Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52.
 Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123.
 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309.
 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008)
237 CLR 285.
 Monis v R (2013) 249 CLR 92.
 Oshlack v Richmond River Council (1998) 193 CLR 72.
 Plaintiff S4-2014 v Minister for Immigration and Border Protection [2014] HCA 34.
 Re Bolton; Ex parte Beane (1987) 162 CLR 514.
 Repatriation Commission v Richmond [2014] FCAFC 124.
 Taylor v Department of Transport [1978] AATA 64.
 Trust Co of Australia Ltd v Commissioner of State Revenue (2003) 77 ALJR 1019.
C Articles
 Melissa de Zwart, ‘Fairness and balance: Lessons from Canada for the proposed
Australian law of fair use’ (2014) 24 AIPJ 129.
 Brendon Murphy, ‘Retrospective on Ridgeway: Governing principles of controlled
operations’ (2014) 38 Crim LJ 38.
 Anne Rees, ‘Infringementnotices and federal regulation: Wolvesin sheep’s clothing?’
(2014) 42 ABLR 276.