casa and the Show Cause Notice

[Up-into-the-air]

More reading for you.

One of the most iniquitous actions of the casa machine and the 4.55 pm Friday action is the Show Cause notice.

The following was published at:

If ever you get a Show Cause letter from CASA

and bears some reading.

IF EVER YOU GET A 'SHOW CAUSE' LETTER FROM CASA ....


CAR 269 (1) Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or an authority, vary, suspend or cancel the licence, certificate or authority where CASA is satisfied that one or more of the following grounds exists, namely:

(a) that the holder of the licence, certificate or authority has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State;

CASA frequently sends out what are called "Show Cause" letters. These letters invite you to show cause why your license should not be cancelled under CAR 269. They usually allege that you have broken the law. The material below only applies to Show Cause letters which make that allegation.

A "Show Cause" letter which alleges that you have violated the law is a horrible trap. If you respond to that letter you are like a small dog which puts itself at the mercy of a big dog by rolling on its back and offering the big dog its neck. The small dog hopes that this act of submission will cause the big dog to act in a chivalrous fashion and walk off. For the small dog, that technique usually works. But if you are up against CASA, your chances are not nearly as good as the small dog's.

If CASA alleges that you have broken the law, that allegation should be dealt with in a Court. Our Court systems have been developed over many centuries to guard us from unfair punishment.

PRECIOUS SAFEGUARDS YOU THROW AWAY BY PLAYING THE 'SHOW CAUSE' GAME

If you engage in the Show Cause process you throw away all those very precious safeguards

* You throw away the right to require that the case against you be proven beyond a reasonable doubt;
* You throw away the right to know, and challenge, the evidence against you;
* You throw away the right to know the identities of your accusers;
* You throw away the right for you or your lawyer to cross-examine your accuser(s) and other witnesses;
* You throw away the right of appeal to a higher Court;

Should CASA ever send me a "Show Cause" notice alleging that I have violated a law I will respond with "I have not been convicted of any of the breaches of the law that you allege.

That is the cause I show.".

Not one word more.

Every month I get letters from people whose licenses have been cancelled by CASA. The sequence of events is always the same:

· The victim receives a "show cause" letter alleging that he/she has violated a whole lot of Regulations. The victim is invited to send a written response and to attend an "informal conference".
· Sometimes the victim attends the "informal conference", sometimes not. If he/she does, he always comes away saying "what a misnomer" after being grilled and tape-recorded.
· The victim then writes a response. In the course of the response he/she usually says things like "it was only a technical breach" or "I did not realise I was not allowed to change the mainwheel tyres" or "there was no NEED for a forecast because I was only going 20 miles and I had rung the person at the other end".
· CASA then decides to cancel or suspend the victim's license, or to do nothing.

Most often the decision goes against the victim. CASA then sends a letter cancelling or suspending his/her license. This letter points out that the victim has the right of appeal to the AAT.

THERE IS NO EFFECTIVE RIGHT OF APPEAL IF CASA CANCELS YOUR LICENCE

* The victim then wastes his time and money appealing to the AAT. Appeals to the AAT against license suspensions or cancellations never succeed. They are a pointless routine which occasionally makes a victim feel better, because he has had his day in Court, but that is all.
If you are going to go to Court against CASA in response to a "Show Cause" letter, I recommend that you make that decision at the outset when you still have all our hard-won safeguards on your side. It is silly to throw away all your safeguards and then look to a tribunal for help. If you are going to fight, fight while you are strong - not after you have thrown away all your weapons.
If you decide to go down the "show cause" route, and CASA cancels your license, don't throw away your money going to the AAT. Just take up another occupation (if you rely on aviation for your living) or another hobby (if you are a private pilot) and get on with your life.

If you are going to fight, consult a lawyer immediately. Remember that you need a CRIMINAL LAWYER - the family solicitor, or the best commercial lawyer from the most expensive firm in the city, is not the right person for this job. Nor is an aviation lawyer. You have been accused of a crime and you need a criminal lawyer. Subject to your lawyer's advice, respond to the "Show Cause" notice by simply saying that you have not been convicted of any of the alleged breaches of the law, and that is the cause you show. Do not enter into any verbal discussions or attend any meetings no matter how "informal" unless your lawyer advises you to. If your lawyer does advise you to roll over and show your neck, get a second opinion from another lawyer before you do.

Once you have received a "show cause" letter from CASA, you are playing for keeps. If you roll over and show your neck, there is better than a 50-50 chance that CASA will cancel or suspend your license.

If CASA still goes ahead and cancels your license, do not appeal to the AAT unless you have huge amounts of spare money, lots of spare time, and nothing else in your life. If your lawyer cannot work out a way to get you into a real Court (such as the Federal Court, under the ADJR Act), don't waste your resources on the AAT. Just accept the fact you have lost your license and get on with your life.

A PRACTICAL EXAMPLE OF HOW THIS CAN GO WRONG

As an example, assume that you irritate a CASA officer, who then decides to show you who is boss. He demands that you produce your logbook for inspection, intending to go through it in the hope of finding evidence of breaches. You refuse to produce your logbook because you fear that it will indeed reveal some inadvertent breaches.

CASA then says you have breached CAR 5.56 and cancels your license under CAR 269(1)(a). You have clearly breached CAR 1988 5.56 if you read the words of that regulation alone. But there is a legal principle that a person cannot be compelled to incriminate himself. Accordingly, if your logbook contains information which may tend to incriminate you, you may not have to produce it in spite of CAR 5.56.

If you make that argument in a Court before a judge, CASA will argue against it but you are likely to win. However if you make that argument in a 'Show Cause' procedure, where CASA is both prosecutor and judge, you are certain to lose.

WHY CASA SOMETIMES PROSECUTES AND SOMETIMES USES 'SHOW CAUSE'

It is always open to CASA to initiate a prosecution against a person whom CASA believes has broken the law. If the person is convicted, the Court can then impose an "exclusion period" which has the same effect as cancelling or suspending your license.

That is the fair way of doing things.

Our forefathers struggled for centuries to gain and retain genuine legal safeguards against heavy-handed treatment by too-powerful bureaucrats. Don't throw those safeguards away by allowing yourself to be tried, convicted, and sentenced by CASA's bureaucrats.

When CASA believes that a person has violated the law, CASA chooses whether to be fair and prosecute the person or be unfair and use the "show cause" procedure. You do not have to be Al Einstein to work out that the cases where the "show cause" procedure is used tend to be those where the evidence is not strong enough to get a conviction, or where a Court is unlikely to impose an "exclusion period" if the person is found guilty.

What's more, CASA can do BOTH - cancel your license under the "Show Cause" procedure, and then prosecute you. If you engage in the "Show Cause" procedure, you will inevitably give CASA a whole lot of evidence it did not have beforehand!

Well casa - Answers

[Frank Arouet]

Well I wondered what happened to this thread. Nice to see it replaced.

At some risk, may I suggest this be part of the pre flight regeime with the aide memoir at hand for such emergencies.

[Up-into-the-air]

From:

Terms of Reference
CIVIL AND ADMINISTRATIVE PENALTIES
Protection of the public

http://www.alrc.gov.au/sites/default...tions/DP65.pdf

3.18 The majority of circumstances in which non-retributive penalties are imposed do not involve general restrictions of liberty, but prevent a person from doing specific activities through removal or restriction of a licence, or banning them from engaging in certain activities in the future. The justification for the action is normally a form of protection of the public. Where the regulator aims to protect public safety (for example, the Civil Aviation Safety Authority)

The question is:

Is a "show cause" notice safety, or is it a restriction of trade???

[No Hoper]

Seems the same as FAA, when a pilot/mechanic breaks the rules their license is in jeopardy.
I prefer Norther Africa, pay some dollars and problem disappears

[thorn bird]

None of the above airy, its really about FOI testosterone replacement
therapy, or how to win a promotion without really trying, safety dosnt enter into it.

[waren9]

Quite possibly the biggest eye opener I've found on proon.

[Metro man]

I prefer Norther Africa, pay some dollars and problem disappears

Unfortunately you will be surprised at the number of real and imaginary problems that keep appearing, all requiring $$$ to sort out.

[Andy_RR]

Originally Posted by waren9

Quite possibly the biggest eye opener I've found on proon.

Dont Talk to Police - YouTube

[Socket]

Thanks Andy, that was a brilliant clip.

[Up-into-the-air]

casa and the Courts - "Watch out"

From "The Division of the Commission constituted under the Australian Law Reform Commission Act 1996 (Cth)"in 2001, reporting to Parliament in November 2002 under the Chair of:

President - Professor David Weisbrot
Deputy President - Dr Kathryn Cronin (to June 2001)

Members
Ian Davis (full-time Commissioner from 13 June 2000)
Brian Opeskin (full-time Commissioner from 31 July 2000)
Professor Anne Finlay (full-time Commissioner from 12 November 2001)
Justice Ian Coleman (part-time Commissioner)
Justice John von Doussa (part-time Commissioner)
Hank Spier (part-time Commissioner from September 2000)
Justice Mark Weinberg (part-time Commissioner)

say in part:

Proposals for model legislation

Developing a model scheme

12.62 Existing federal infringement notice schemes are discussed at para 12.29–

12.47. Fox has suggested the development of uniform legislation to apply nationally across federal, state and territory jurisdictions.1612

He considered that a model scheme should have the following features:

• It should apply only to summary offences;
• Payment of the penalty should fully expiate the offence (that is, no conviction should be recorded);
• Associated loss of benefits such as licence suspension or demerit points may apply but no suspension or cancellation should exceed six months;;
• The maximum penalty payable should not exceed $500 or one-quarter of the maximum statutory penalty if the matter is dealt with by a court;
• The scheme should be administered by the public officials responsible for enforcing the legislation which creates the offence;
• The discretion to issue a warning in less serious cases or to take immediate court action in more serious cases should be available, such discretion to be exercised in accordance with published guidelines;
• Infringement notices should be written in Plain English with foreign language warnings;
• The infringement notice must clearly state that contesting the offence in court is an option;
• The infringement notice should give the person the opportunity to bring factual matters to the attention of the agency issuing the notice, with the aim of having the notice withdrawn; and
• If a court hears the matter, it should be heard by way of a ‘hand-up brief’.

Now that tells us how the general direction for regulation, penalties and "show cause" is to move.

Further, it makes some very specific requirements, putting the onus, onto the regulator to specific ways of doing things of a legal nature.

Question is why don't casa behave this way now??

Read ON:

12.64 The ALRC considers that there is a need for consistency across federal infringement notice schemes and suggests that development of a model federal scheme is appropriate. The features of a proposed federal scheme are outlined below:
(a) It should apply only to strict or absolute liability offences of a ‘less serious nature’ the meaning of ‘less serious nature’ would need to be defined by legislation. It is inappropriate to issue an infringement notice for an offence that requires any detailed forensic analysis, particularly of a state of mind.

1613 Australian Law Reform Commission, Multiculturalism and the Law, ALRC 57 (1992), Australian Law
Reform Commission, Sydney, para 9.28.

(b) The amount payable under an infringement notice should not exceed one fifth or 20% of the maximum penalty which might be imposed if the matter is dealt with by a court. An alternative would be to specify a set penalty in the legislation authorising the issue of the infringement notice. The amount of the specified penalty should be sufficiently lower than the maximum amount likely to be imposed by the court to make the payment of that amount attractive to the alleged offender.
(c) Before an infringement notice may be issued, the regulator must have ‘reasonable grounds to believe’ that the alleged offence has been committed.
(d) Guidelines on the use of infringement notices by the regulator should be issued in the form of a disallowable instrument to permit parliamentary scrutiny and published in locations that are easily accessible to the public.
(e) Only one notice should be issued for each alleged offence. If the conduct might amount to several different offences, the regulator must choose which offence it will base the infringement notice on.
(f) The regulator should have the discretion to give a warning rather than issue an infringement notice.
(g) The regulator should have the discretion to initiate proceedings rather than issue an infringement notice.
(h) There should be a 12 month time limit after the occurrence of the alleged offence in which an infringement notice may be issued.
(i) The rights of the alleged offender should be clearly set out in the infringement notice in Plain English these must include, in particular, the right to elect to contest liability in court; the right to apply for withdrawal of the notice;
and the effect of payment (that is, that it acts as a bar to proceedings being instituted for prosecution of the alleged offence).
(j) The payment of an amount by a person under an infringement notice should not be taken for any purpose to be an admission by that person of any liability for the alleged commission of the offence.
(k) The consequence of failing to pay an amount set out in an infringement notice should be prosecution for the alleged offence and not an alternative or substitute penalty such as licence suspension or cancellation. The imposition of licence variations, demerit points or similar on-going penalties would have an effect similar to that of keeping an infringement notice history of an 418 offender in that the expiation of the offence is illusory and the record of it persists in one way or another.
(l) The alleged offender should have the right to seek to have the infringement notice withdrawn by presenting material to the issuing authority demonstrating that the factual basis on which the notice was issued was erroneous. If substantiated, this would nullify the whole process. However, there should not be any scope for the alleged offender to seek a variation of the penalty, as this would place the regulator in the position of a court.1614
(m) The payment of an amount by a person under an infringement notice should prevent any record of the alleged offence being kept by the regulator. On balance, the ALRC’s provisional view is that the coercive power of an infringement notice to persuade an alleged offender to pay even if liability is in doubt because of the costs of contesting the matter in court is such that to maintain any record of the issue and outcome of infringement notices is unfair.

I believe this gives direction to casa on how to behave.

The question is, why do casa behave the way that they do??

More reading at:

http://www.alrc.gov.au/sites/default...tions/DP65.pdf

[thorn bird]

Why does a dog lick its Balls??

BECAUSE IT CAN!!

[LeadSled]

Andt RR,
Unfortunately, Australians have no constitutional protection similar to the Fifth Amendment to the US Constitution.

The Australian common law rights against self incrimination are very limited, and statute law trumps the common law, unless it is found to be unconstitutional by the High Court of Australia.

Indeed, there is a large body of law here, both State and Commonwealth, where you can be compelled to answer, including being forced to incriminate yourself, with attached severe penalties for non-compliance.

Sadly, the whole US ethos of "freedom" has little support in Australia, by and large we seem to be very accepting and tolerant of, or even demanding of, levels of Government imposed legislated control, that would be anathema in the US.

Indeed, all too many Australians seem to feel uncomfortable with the very idea of the level of constitutionally protected personal freedom that is taken for granted in the US. The general approach to defamation in the US is one example, if you are any kind of a public figure, politician or similar, you just have to wear the most outrageous slurs. The recent inquiry into media content here would never happen in the US, the First Amendment guarantees of freedom of speech is taken very literally by the US High Court.

Further, "they wouldn't have made those accusations if they weren't true" or "where there's smoke, there's fire" are very common mindsets, particularly in aviation, were practitioners are very ready to believe their worst about their peers.

Having said all that, the "say nothing" advice is good, and police or other "trained investigators" here use all the same techniques as shown in the video, in pursuit of successful prosecutions, don't give them a free kick.

There is a famous case, years ago, of a DH 82 very publicly flying under the Sydney Harbour Bridge. DCA ( I think it was at the time) demanded that the pilot of the aircraft admit he or she was the pilot. "Nobody" saw who climbed into the aircraft, or who climbed out, so DCA had no "independent witness" proof of the identity of the pilot, only a potential admission by the pilot. There was no dispute over the identity of the aircraft, or its owner.

The alleged pilot said nothing ---- and I mean nothing. He or she did not deny they were the pilot, so they could never be accused of giving false evidence, they just said nothing, zilch, naught. DCA never succeeded in establishing the identity of the pilot, and the matter was finally allowed to die.

As far as "air safety" is concerned in Australia, "air safety" is such a holy cow that even "proof beyond a reasonable doubt" all too often produces "facts" that would only be accepted in an aviation environment as "evidence".

Tootle pip!!

PS: One of the sad things I come across, from time to time, is "somebody" being so keen to assist CASA investigators, to try and show what reasonable persons they are, that they wind up admitting guilt to things that CASA didn't know about. Not keeping it zipped can prove to be very expensive --- don't back your chances in a field where you are a naive novice.

[Creampuff]

I agree with Leaddie’s point about the cultural differences between the USA and Australia.

In the USA, government is grudgingly tolerated and kept under close rein by a populace whose presumptive position is that any interference with an individual’s freedom is bad. Government in the USA is a creation of the populace and there to facilitate the aspirations of the populace. Government is required to stay in its place, like a pet dog. And, like a pet dog, government in the USA occasionally tries to expand its territory and take a higher status in the pack, in which case it gets a wet newspaper across the nose.

In Australia, government came first, and still comes first. The population comprises subjects of the monarch who are, as subjects, presumptively to be controlled. The government has powers for the peace, order and good government ‘of’ Australians, not ‘for’ Australians. Australians are the pet dogs, choosing between temporary kennel managers. The choice fools them into believing they’re ‘free’.

[thorn bird]

Cough!!!!..splutter...!!..jesus Creamie you could have warned us!!
nearly chocked on my red,..you actually AGREE with leadie???
Na...couldnt be surely its an aberration??

[Creampuff]

Another odd facet of the Australian psyche is the inability to separate an opinion from the person expressing the opinion.

If you’ve actually read, objectively, the opinions I’ve expressed on PPRuNe, you’d see that I occasionally agree with the opinion expressed by Leaddie, and I occasionally disagree.

The USA also does 'debate' better than Australia. Much better.

These fora are supposed to demonstrate and promote substance over personality.

For which kennel managers do you vote, Thorn Bird?

[Andy_RR]

While I don't disagree with anything you have written, Leadie, I do suggest relying on any law to defend yourself is fraught with danger and usually doomed from the beginning. A better approach is to slow and frustrate the 'legal' process as much as is practicable until the political will to prosecute has been exhausted. Keeping mum about everything you can do is merely the first and, possibly the best weapon you have.

[Frank Arouet]

Last time I was "ramped" it took a considerable amount of self restraint to prevent me becoming the defendent in an assault case. Talking to idiots simply educates them.

Next time I will claim I am being "stalked".

[Creampuff]

Up-into-the-air: You completely misunderstand the functions and powers of the ALRC. Please do some more research.

All: The video at RR’s link is interesting, and instructive, for a number of reasons, one of which is the manifestation of one cultural similarity between the USA and Australia. Those of you who were watching and listening to both speakers, closely, would have noticed to whom they attributed much of the propensity to misconstrue the position and evidence of even the innocent defendants. It’s a little like the propensity of the ‘industry’ in Australia.

Mirrors ready. Mirrors up.

And don’t confuse criminal actions and administrative actions.

If someone receives a ‘show cause’ notice in Australia, the recipient is, like anyone in the USA, perfectly entitled to say nothing. But the regulator in Australia is also perfectly entitled to proceed to make an administrative decision, with adverse affects for the recipient of the ‘show cause’ notice’, despite silence from the recipient.

For example, if the Australian regulator sends a notice asking the recipient to show cause as to why the regulator should not cancel the recipient’s pilot’s licence on the ground that the recipient has breached the direction requiring specified tolerances from Class C or E or Restricted airspace to be applied to the intended flight path of aircraft of which the recipient was PIC, and the recipient says nothing in response, the regulator is entitled to cancel the licence provided the regulator finds, as a matter of fact and despite silence from the PIC and an absence of a successful prosecution for the ‘offences’, that the breaches occurred.

Now, while everyone’s spitting their wine, whiskey, coffee, tea, cool-aid or medication across the room, I’d suggest grabbing that mirror again.

[Andy_RR]

Originally Posted by Creampuff

...the regulator is entitled to cancel the licence provided the regulator finds, as a matter of fact... ...that the breaches occurred.

Who gets to determine the relevant facts for such an administrative decision?

Don't confuse 'silence' (of the fifth ammendment variety) with an absence of communication. You absolutely need to correspond with the regulator in such a matter. The 'fifth ammendment' part just guides what statements or claims you make, which is preferably nothing, excepting perhaps to dispute the accuracy of the facts or for pointing out where opinion or allegation has been confused for fact.
In the case for disputing facts, I don't mean to give your version of the facts as a rebuttal. I'm merely suggesting that you assert that the facts are not correct in an effort to trigger some form of judicial process that allows the facts to be examined, hopefully with at least a pretence of impartialiity.

There's absolutely no secret recipe for any dispute of this type or more generally. The strategy must be put together based on the specifics of the case, but the starting point is always to give the prosection/regulator as little ammunition as possible and, inasmuch as it is possible, to question or dispute anything they do have.

[Up-into-the-air]

casa and the Show Cause Notice - Right to have the matter Heard in Court

This is the real matter here.

Each and everyone is entitled to have the matter of accusation heard in a Court of their peers.

SIMPLE