Show Cause and CAR 269
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Show Cause and CAR 269
As the JQ, Alligator, Hempel, Butson etc (the list isn't exhaustive) all deal with the regulator and somewhere along the line their 'Show Cause' process and CAR 269, see here:
For those of a legal 'bent' can you please explain the workings and machinations of CAR 269, in particular sub paragraph (1) (a) which reads:
(a) that the holder of the authorisation has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State;
....but is also governed by the conditions of what (by its numbering) I assume was an amendment (1A)(a)&(b), which reads:
(a) the holder of the authorisation has been convicted by a court of an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention; or
(b) the person was charged before a court with an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention and was found by the court to have committed the offence, but the court did not proceed to convict the person of the offence.
Presumably that is why the regulator, in several examples, submits a 'brief of evidence' to the CDPP. I assume this must be to try to obtain a conviction prior to the 'Show Cause' notice, when the individual doesn't have previous breaches convicted in a court.
Why then in JQs case was the Show Cause upheld if it didn't meet the premise of CAR 269....or am I missing something? Is this just another case of a bad law easily manipulated to suit the purposes of the regulator??
Is this the reason why when the brief against the two Hempel individuals was rejected by the CDPP, that the Show Cause notice was also dropped?
Anyway legal eagles as Pauline Hanson said...."Please explain!"
CIVIL AVIATION REGULATIONS 1988 - REG 269
Variation, suspension or cancellation of approval, authority, certificate or licence
(1) Subject to this regulation, CASA may, by notice in writing served on the holder of an approval, authority, certificate or licence (an authorisation ), vary, suspend or cancel the authorisation if CASA is satisfied that one or more of the following grounds exists, namely:
(a) that the holder of the authorisation has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State;
(b) that the holder of the authorisation fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these regulations in relation to the obtaining or holding of such an authorisation;
(c) that the holder of the authorisation has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d) that the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation;
(e) that the holder of the authorisation has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders.
(1A) CASA must not cancel an authorisation under subregulation (1) because of a contravention mentioned in paragraph (1) (a) unless:
(a) the holder of the authorisation has been convicted by a court of an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention; or
(b) the person was charged before a court with an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention and was found by the court to have committed the offence, but the court did not proceed to convict the person of the offence.
(2) A notice under subregulation (1) shall set out the grounds for the decision.
(3) Before taking action under this regulation to vary, suspend or cancel an authorisation, CASA must:
(a) give notice, in writing, to the holder of the authorisation of the facts and circumstances that, in the opinion of CASA, warrant consideration being given to the variation, suspension or cancellation of the authorisation under this regulation; and
(b) allow the holder of the authorisation to show cause, within such time as CASA specifies in that notice, why the authorisation should not be varied, suspended or cancelled under this regulation.
(4) The time specified by CASA in the notice under subregulation (3) as the time within which the holder of the authorisation may show cause why the authorisation should not be varied, suspended or cancelled under this regulation shall be a time that is reasonable in all of the circumstances of the particular case.
(5) A reference in this regulation to these Regulations is a reference to these Regulations other than Subparts 99.C and 99.E of CASR.
Variation, suspension or cancellation of approval, authority, certificate or licence
(1) Subject to this regulation, CASA may, by notice in writing served on the holder of an approval, authority, certificate or licence (an authorisation ), vary, suspend or cancel the authorisation if CASA is satisfied that one or more of the following grounds exists, namely:
(a) that the holder of the authorisation has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State;
(b) that the holder of the authorisation fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these regulations in relation to the obtaining or holding of such an authorisation;
(c) that the holder of the authorisation has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d) that the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation;
(e) that the holder of the authorisation has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders.
(1A) CASA must not cancel an authorisation under subregulation (1) because of a contravention mentioned in paragraph (1) (a) unless:
(a) the holder of the authorisation has been convicted by a court of an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention; or
(b) the person was charged before a court with an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention and was found by the court to have committed the offence, but the court did not proceed to convict the person of the offence.
(2) A notice under subregulation (1) shall set out the grounds for the decision.
(3) Before taking action under this regulation to vary, suspend or cancel an authorisation, CASA must:
(a) give notice, in writing, to the holder of the authorisation of the facts and circumstances that, in the opinion of CASA, warrant consideration being given to the variation, suspension or cancellation of the authorisation under this regulation; and
(b) allow the holder of the authorisation to show cause, within such time as CASA specifies in that notice, why the authorisation should not be varied, suspended or cancelled under this regulation.
(4) The time specified by CASA in the notice under subregulation (3) as the time within which the holder of the authorisation may show cause why the authorisation should not be varied, suspended or cancelled under this regulation shall be a time that is reasonable in all of the circumstances of the particular case.
(5) A reference in this regulation to these Regulations is a reference to these Regulations other than Subparts 99.C and 99.E of CASR.
(a) that the holder of the authorisation has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State;
....but is also governed by the conditions of what (by its numbering) I assume was an amendment (1A)(a)&(b), which reads:
(a) the holder of the authorisation has been convicted by a court of an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention; or
(b) the person was charged before a court with an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention and was found by the court to have committed the offence, but the court did not proceed to convict the person of the offence.
Presumably that is why the regulator, in several examples, submits a 'brief of evidence' to the CDPP. I assume this must be to try to obtain a conviction prior to the 'Show Cause' notice, when the individual doesn't have previous breaches convicted in a court.
Why then in JQs case was the Show Cause upheld if it didn't meet the premise of CAR 269....or am I missing something? Is this just another case of a bad law easily manipulated to suit the purposes of the regulator??
Is this the reason why when the brief against the two Hempel individuals was rejected by the CDPP, that the Show Cause notice was also dropped?
Anyway legal eagles as Pauline Hanson said...."Please explain!"
Thread Starter
Interesting article from a learned gentleman (legal eagle) in regards to the 2003 amendment to CAR 269:
Civil Aviation Amendment Act 2003 - Effective dates and important amendments:
I wonder if McKeown would have the same opinion now?
Civil Aviation Amendment Act 2003 - Effective dates and important amendments:
The above Act was assented to on 21 October 2003. This Act amended the Civil Aviation Act 1988 and the Civil Aviation Regulations 1988. Put very briefly, these amendments brought into law the automatic stay provisions in the AAT, the requirement that CASA must go to the Federal Court within 5 days of suspending a person's licence or authority (See previous article – fit and proper person), Voluntary Enforceable Undertakings (VEUs), the Demerit Points Scheme and abolishes the Board.
The above amendments are set out in Schedule 1 of the mentioned Amending Act. There are some varying dates on which the amendments come into effect. The Board has gone effective on Royal assent. However, there is a period of four months before the new AAT stay provisions, the Federal Court 5 days “serious and imminent risk to air safety” applications, the VEUs Scheme and the Demerits Scheme come into effect. So come 21 February 2004, these new systems and schemes will be upon us.
Of important interest is the fact that there is a Second Schedule to the mentioned Amending Act. Schedule 2 has two items. The first repeals the old Regulation 268. But wait – not until the new schemes come into effect above ie 21 February 2004. The second item is a beauty and is very significant. No longer will CASA be able on their opinion alone, to cancel a licence or authority on the basis that it believes a person may have breached the Act or a Regulation, and this was effective as from Royal assent.
CASA must first obtain a conviction from a Court of Law before they can rely on paragraph (1) of Regulation 269. This is an excellent amendment and should make cancellations much fairer. However, a breach of the Regulations is generally now easier to prove following the amendments to the Regulations making most breaches offences of “strict liability”. These “strict liability” amendments came into force on 6 August 2003.
The above Act was assented to on 21 October 2003. This Act amended the Civil Aviation Act 1988 and the Civil Aviation Regulations 1988. Put very briefly, these amendments brought into law the automatic stay provisions in the AAT, the requirement that CASA must go to the Federal Court within 5 days of suspending a person's licence or authority (See previous article – fit and proper person), Voluntary Enforceable Undertakings (VEUs), the Demerit Points Scheme and abolishes the Board.
The above amendments are set out in Schedule 1 of the mentioned Amending Act. There are some varying dates on which the amendments come into effect. The Board has gone effective on Royal assent. However, there is a period of four months before the new AAT stay provisions, the Federal Court 5 days “serious and imminent risk to air safety” applications, the VEUs Scheme and the Demerits Scheme come into effect. So come 21 February 2004, these new systems and schemes will be upon us.
Of important interest is the fact that there is a Second Schedule to the mentioned Amending Act. Schedule 2 has two items. The first repeals the old Regulation 268. But wait – not until the new schemes come into effect above ie 21 February 2004. The second item is a beauty and is very significant. No longer will CASA be able on their opinion alone, to cancel a licence or authority on the basis that it believes a person may have breached the Act or a Regulation, and this was effective as from Royal assent.
CASA must first obtain a conviction from a Court of Law before they can rely on paragraph (1) of Regulation 269. This is an excellent amendment and should make cancellations much fairer. However, a breach of the Regulations is generally now easier to prove following the amendments to the Regulations making most breaches offences of “strict liability”. These “strict liability” amendments came into force on 6 August 2003.
I wonder if McKeown would have the same opinion now?
[A]m I missing something?
The AATs decision in the JQ matter was based on the grounds in 269(1)(c) and (d), not (a).
Last edited by Creampuff; 12th Jul 2012 at 05:09.
The original show cause might have specified (a) to (e), inclusive. So what?
269(1A) imposes a constraint only on the decision to cancel, not what grounds may be specified in a show cause notice that might lead to one or more of a variety of regulatory actions, including suspension or cancellation for reasons other than findings of a court. CASA and the AAT needed only one ground, and eventually made and affirmed a decision on the basis of two, neither of which is the ground to which the constraint in 269(1A) applies.
269(1A) imposes a constraint only on the decision to cancel, not what grounds may be specified in a show cause notice that might lead to one or more of a variety of regulatory actions, including suspension or cancellation for reasons other than findings of a court. CASA and the AAT needed only one ground, and eventually made and affirmed a decision on the basis of two, neither of which is the ground to which the constraint in 269(1A) applies.
Last edited by Creampuff; 12th Jul 2012 at 21:42.
Thread Starter
The original show cause might have specified (a) to (e), inclusive. So what?
So Creamy being a fount of knowledge in all things of a regulatory nature, how is it that the good officers of the crown presumably put their 'Prosecution Policy' to the CASA brief, see here:
http://www.cdpp.gov.au/Publications/...tionPolicy.pdf
Which you see is designed around the remit of 'in the public interest', subsequently they decided the CASA investigator's 'brief of evidence' could not support these four charges:
13. it is enough to say that the investigation resulted in Mr Quadrio being charged with four offences,
o reckless operation of an aircraft contrary to s 20A(1) of the Civil Aviation Act;
o aerobatic flight contrary to CAR 155(1)(c);
o aerobatic flight below 3,000 feet contrary to CAR 155(3)(a); and
o low flying contrary to CAR 157(1)(b).
Eventually the view was apparently taken that the charges could not be proved to the criminal standard and they were dismissed in September 2010.
o reckless operation of an aircraft contrary to s 20A(1) of the Civil Aviation Act;
o aerobatic flight contrary to CAR 155(1)(c);
o aerobatic flight below 3,000 feet contrary to CAR 155(3)(a); and
o low flying contrary to CAR 157(1)(b).
Eventually the view was apparently taken that the charges could not be proved to the criminal standard and they were dismissed in September 2010.
You then are trying to tell me that it is acceptable for CASA legal to not accept the opinion of the officer's of the crown, that they believe JQ doesn't have a case to answer in a Federal Court, subsequently making a decision to amend the original Show Cause notice to (c)&(d) and to put JQ to more financial and psychological heart break by giving him the ownly option of appealing in the AAT!
Well I'm sorry but that just smacks of some petty vendetta, oh and Creamy that's before we get stuck into (c)&(d), I've a few Qs in regards to them also.....
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The AAT process
Good post sarcs.
The AAT finding makes interesting reading, where at para 37 of the report, the AAT ["which stands in the shoes of the Regulator"] goes on to investigate and ultimately prosecute JQ on the basis of exactly the same charges as sarcs lists at para. 13 of the AAT report.
Surely this brings the effect of casr 269(1)a into play, which simply is:
and:
Answer creamie???
The AAT finding makes interesting reading, where at para 37 of the report, the AAT ["which stands in the shoes of the Regulator"] goes on to investigate and ultimately prosecute JQ on the basis of exactly the same charges as sarcs lists at para. 13 of the AAT report.
Surely this brings the effect of casr 269(1)a into play, which simply is:
(a) that the holder of the authorisation has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State;
(1A) CASA must not cancel an authorisation under subregulation (1) because of a contravention mentioned in paragraph (1) (a) unless:
(a) the holder of the authorisation has been convicted by a court of an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention; or
(b) the person was charged before a court with an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention and was found by the court to have committed the offence, but the court did not proceed to convict the person of the offence.
(a) the holder of the authorisation has been convicted by a court of an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention; or
(b) the person was charged before a court with an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention and was found by the court to have committed the offence, but the court did not proceed to convict the person of the offence.
I’m merely pointing out facts. You might not like them, but they are still facts.
I don’t understand why you want to have an argument with someone who didn’t make and can’t change the decision or the law, but you can’t be bothered to have an argument with the people who actually made the decision in accordance with the law.
Let me demonstrate: You’re absolutely correct! This is a travesty! Those lawyers use the Legal Services Directions for toilet paper! They used a loophole when ‘Plan A’ failed. The Tribunal was duped!
Did the licence fairy just pop a CPL under Mr Q’s pillow?
I don’t understand why you want to have an argument with someone who didn’t make and can’t change the decision or the law, but you can’t be bothered to have an argument with the people who actually made the decision in accordance with the law.
Let me demonstrate: You’re absolutely correct! This is a travesty! Those lawyers use the Legal Services Directions for toilet paper! They used a loophole when ‘Plan A’ failed. The Tribunal was duped!
Did the licence fairy just pop a CPL under Mr Q’s pillow?
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Perhaps he is saying, just because it's law doesn't make it a good law?
Bad law should be objected to in the most agressive manner.
I would like to see any example of aerobatic flight in a Robinson helicopter at any altitude, (ignoring the criminally doctored utube video), especially negative manouvers, which would result in a tailstrike. Further I would argue that it is legal to fly low, if you are going to land, (haven't seen one stuck up there yet).
On the JQ matter, I note there was no proffered recorded data despite the accused being read his rights and advised the interview was being taped.
Was there something incriminating in the tape that necessitated it become lost/ destroyed or disappeared? Happens quiet regularly. I know from personal experience.
Bad law should be objected to in the most agressive manner.
aerobatic flight contrary to CAR 155(1)(c);
o aerobatic flight below 3,000 feet contrary to CAR 155(3)(a); and
o low flying contrary to CAR 157(1)(b).
o aerobatic flight below 3,000 feet contrary to CAR 155(3)(a); and
o low flying contrary to CAR 157(1)(b).
On the JQ matter, I note there was no proffered recorded data despite the accused being read his rights and advised the interview was being taped.
Was there something incriminating in the tape that necessitated it become lost/ destroyed or disappeared? Happens quiet regularly. I know from personal experience.
Thread Starter
Oh Creamy I'm not picking on you per se, it is just that you have this knack (almost six sense) of knowing how and why the regulator will react to almost any given situation...you'd be a formidable opponent if you were batting for the other side!
Are you talking about the AAT or the regulator?
Maybe the licence fairy doesn't have to!!
Ok if we put JQ's case aside as some kind of aberration, I think I've worked out why CAR 269 was amended in August 2003 and it's that smart bloke McKeown that shines the light:
Repacholi and Civil Aviation Safety Authority [2003] AATA 573 (18 June 2003)
Yes that dreaded name that continues to reverberate down the halls of Fort Fumble....yep that mad bloke Repacholi!!
By the way McKeown also has an interesting take on CAR 269 (1) (d), but I'll save that for Ron!
but you can’t be bothered to have an argument with the people who actually made the decision in accordance with the law.
Did the licence fairy just pop a CPL under Mr Q’s pillow?
Ok if we put JQ's case aside as some kind of aberration, I think I've worked out why CAR 269 was amended in August 2003 and it's that smart bloke McKeown that shines the light:
This interesting 48 page judgement of the Administrative Appeals Tribunal can be viewed online.
Yes that dreaded name that continues to reverberate down the halls of Fort Fumble....yep that mad bloke Repacholi!!
By the way McKeown also has an interesting take on CAR 269 (1) (d), but I'll save that for Ron!
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So CAR 269 (1)(d), the dreaded 'fit and proper person' thing!
In the AAT decision for JQ and the regulator, the Deputy President P E Hack SC relies on a previous Tribunal case:
This, presumably, was in order to prove that JQ wasn't a 'fit and proper person'. The Tribunal DP goes onto take a quote from this tribunal decision:
Although from the Tribunal's point of view this is (possibly) precedence set in defining a 'fit and proper person', along with the good DP pointing out:
Personally, from a layman's point of view, isn't it a bit like comparing apples and oranges?
How can you justify that, although "relevantly identical", r258 which was written in a time, place, context and environment totally different to CAR 269 is therefore applicable to this matter?
I'd prefer to defer to that 'learned gentleman' McKeown and that 'rat bag' Repacholi (at least it was in this century!):
Q/ Why wasn't the Repacholi case considered as 'precedent' in regards to the JQ matter??
In the AAT decision for JQ and the regulator, the Deputy President P E Hack SC relies on a previous Tribunal case:
In Re Taylor and Department of Transport[11] the Tribunal was considering reg 258 of the Air Navigation Regulations, the statutory precursor to reg 269 of the Civil Aviation Regulations and relevantly identical to it.
“In the context of reg 258(1)(d), the enquiry whether the applicant is a ‘fit and proper person’ is directly focused upon the fitness and the propriety of the applicant exercising the ‘responsibilities’ and performing the ‘functions’ and ‘duties’ of the holder of a licence – in this case a commercial pilot licence.
It is not simply a question of competence to fly an aircraft which the Secretary must consider for this purpose.In our view, what the regulation requires is a consideration of the applicant's conduct measured against the responsibilities, functions and duties of the holder of a commercial pilot licence as they emerge from the provisions of the Air Navigation Regulations.
Whilst it would be inappropriate to endeavour to catalogue those responsibilities, functions and duties in any exhaustive fashion, it is clear that they include observing the interests of the safety of air navigation – not only the interests of pilots, passengers and the owners of aircraft, but also the interests of the public at large.”
It is not simply a question of competence to fly an aircraft which the Secretary must consider for this purpose.In our view, what the regulation requires is a consideration of the applicant's conduct measured against the responsibilities, functions and duties of the holder of a commercial pilot licence as they emerge from the provisions of the Air Navigation Regulations.
Whilst it would be inappropriate to endeavour to catalogue those responsibilities, functions and duties in any exhaustive fashion, it is clear that they include observing the interests of the safety of air navigation – not only the interests of pilots, passengers and the owners of aircraft, but also the interests of the public at large.”
the Tribunal was considering reg 258 of the Air Navigation Regulations, the statutory precursor to reg 269 of the Civil Aviation Regulations and relevantly identical to it.
How can you justify that, although "relevantly identical", r258 which was written in a time, place, context and environment totally different to CAR 269 is therefore applicable to this matter?
I'd prefer to defer to that 'learned gentleman' McKeown and that 'rat bag' Repacholi (at least it was in this century!):
CASA alleged that the pilot was not (amongst other things), a fit and proper person to hold a licence. What does this mean?
The Tribunal decided that there is a difference between the situation of a person being issued a licence and a person having their licence cancelled. At the issuing stage, the Tribunal said you look only at matters that relate to the safety of air navigation, whereas at the cancelling stage you have regard to a wider range of considerations.
You consider not only matters relating to the safety of air navigation, but also the licence holder’s past record of compliance, or non compliance, with the Regulations during the currency of their licence as being indicative of the likelihood of their complying, or not complying with the regulations in the future and of their respect or lack of respect, for the Regulations and civil aviation regulatory legislation generally.
This includes an applicant’s conduct in his dealings with CASA officers in their professional capacities and whether such conduct is indicative of the degree of the applicant’s respect for the civil aviation laws. In this case the pilot had a restraining type court order against him, taken out by CASA officers. The conduct which allegedly lead to the orders being made, was said by the Tribunal to be a very angry reaction to particular action by those CASA officers which placed his aviation business and his very livelihood in jeopardy and which he regarded – not unreasonably, as unfair and completely unjustifiable in the circumstances.
The Tribunal found that, viewed in that way, the conduct was inexcusable and unacceptable, but that it could not fairly be regarded as indicating, of itself, a scant regard by him for the aviation laws or an inability or unwillingness on his part to relate professionally and constructively with CASA and its officers in the future.
The Tribunal decided that there is a difference between the situation of a person being issued a licence and a person having their licence cancelled. At the issuing stage, the Tribunal said you look only at matters that relate to the safety of air navigation, whereas at the cancelling stage you have regard to a wider range of considerations.
You consider not only matters relating to the safety of air navigation, but also the licence holder’s past record of compliance, or non compliance, with the Regulations during the currency of their licence as being indicative of the likelihood of their complying, or not complying with the regulations in the future and of their respect or lack of respect, for the Regulations and civil aviation regulatory legislation generally.
This includes an applicant’s conduct in his dealings with CASA officers in their professional capacities and whether such conduct is indicative of the degree of the applicant’s respect for the civil aviation laws. In this case the pilot had a restraining type court order against him, taken out by CASA officers. The conduct which allegedly lead to the orders being made, was said by the Tribunal to be a very angry reaction to particular action by those CASA officers which placed his aviation business and his very livelihood in jeopardy and which he regarded – not unreasonably, as unfair and completely unjustifiable in the circumstances.
The Tribunal found that, viewed in that way, the conduct was inexcusable and unacceptable, but that it could not fairly be regarded as indicating, of itself, a scant regard by him for the aviation laws or an inability or unwillingness on his part to relate professionally and constructively with CASA and its officers in the future.
[Y]ou have this knack (almost six sense) of knowing how and why the regulator will react to almost any given situation …
The answer is in the regulations quoted and the AAT’s decisions, all of which material is available to anyone who wants to “read” it.
If some people are unable to read and comprehend the difference between the terms “decision” and a “show cause notice” – even the number of words is different – and unable to read and comprehend that any one or more of five grounds is a valid basis on which to support CASA’s and the AAT’s decision, that’s not my problem.
Thread Starter
If some people are unable to read and comprehend the difference between the terms “decision” and a “show cause notice” – even the number of words is different – and unable to read and comprehend that any one or more of five grounds is a valid basis on which to support CASA’s and the AAT’s decision, that’s not my problem.
Creamy reading has always been the least of my problems, if however we're talking about 'comprehending' the decision made by the AAT in regards to CAR 269 (1)(d) and the apparent misuse of CAR 269 by the regulator, then yes I do have a problem.
Basically it's a dodgy reg being used in a dodgy way, to avoid actually proving in a proper court of law that an individual has a case to answer (beyond reasonable doubt).
If a person goes DUI and its his first time with no other priors/criminal convictions, however he has blown well over the limit then he will probably cop a big fine and a suspension of his licence. But there is a big difference to the aviation equivalent, because if he wants to contest the charge he can have his day in court and his previous good behaviour/no priors will be taken into account. Also all relevant and significant past cases that set precedence will be referred to and scrutinised by the officer's of the court.
If we then come back and take a look at the subject of CAR 269(1)(d) in regards to Repacholi, as being a relevant case in dealing with the 'Fit and Proper' person sub paragraph of CAR 269 (McKeown obviously thought so too) (I know there'll be some that won't this dragged over the coals again):
In the Tribunal's opinion it is appropriate, in determining whether a person is a "fit and proper person" for the purpose of deciding whether to cancel that person's licence under reg 269(1) of the Regulations, to have regard to a wider range of considerations than is permissible when determining whether a person is a "fit and proper person" for the purpose of deciding whether to issue a licence to that person under reg 5.09(1) of the regulations.
In the latter case it appears, from reg 5.09(3) of the Regulations, that the category of matters that may be taken into account is limited to matters that relate to the safety of air navigation.
In the former case, however, it is appropriate that consideration be given not only to matters relating to the safety of air navigation but also, inter alia, tothe licence holder's past record of compliance, or non-compliance, with the Regulations during the currency of their licence as indicative of the likelihood of their complying, or not complying, with the Regulations in the future, and of their respect, or lack of respect, for the Regulations and civil aviation regulatory legislation generally.
The Tribunal accepts Mr Shields' submission that, in the present case, it is appropriate for it to have regard to the applicant's conduct in his dealings with CASA officers in their professional capacities, and at least in so far as such conduct is indicative of the degree of the applicant's respect, or lack thereof, for the civil aviation laws and for those persons whose professional responsibility it is to uphold and enforce them.
90. The applicant's compliance history and aviation-related conduct over the last 20 years appear to the Tribunal to fall into 2 distinct periods.
Throughout the 1980s up until 1991, the applicant's aviation record was very poor, involving various contraventions of the Regulations resulting in adverse actions by the CAA and, indeed, in numerous criminal convictions for aviation-related offences (see paragraphs 5-14 above).
Since 1993, however, the applicant's aviation-related record has been generally very good. Apart from the weed-spraying incident at Jandakot Airport in 1999 which resulted in the applicant's being counselled by Mr James, a CASA District Flight Operations Manager, it appears that no adverse action was taken by the CAA or by CASA regarding the applicant until March 2002 following the Cessna float plane trailer take-off incident at Jandakot Airport on 10 January 2002. Furthermore, certain notable positive developments regarding the applicant's aviation qualifications occurred during that period, including:
* the issuing by the CAA of a commercial pilot (aeroplane) licence to the applicant on 15 October 1993;
* the grant of approval by the CAA on 10 February 1995 for the applicant to be appointed Chief Pilot of Repacholi Aviation Pty Ltd;
* the grant of approval by CASA, on 27 July 1998, to the applicant to act as an approved agricultural (aeroplane) pilot for the purpose of direct and indirect supervision.
91. The abovementioned weed-spraying incident in 1999 has not been found by the Tribunal to have involved a contravention of the Act or of the Regulations.
Manoeuvres executed by the applicant shortly after the above mentioned take-off incident on 10 January 2002 have, on the other hand, been found by the Tribunal to have involved a contravention of regs 157(1)(b) and 166(1)(g) of the Regulations.
The Tribunal has also found, however, that neither of those contraventions of the Regulations involved the unsafe operation by the applicant of the relevant aircraft or constituted a failure by the applicant in his duty with respect to any matter affecting the safe or efficient navigation or operation of that aircraft.
92. There remain for consideration the allegations made by CASA officers Dolby and Farquharson (in their written statements and in their oral evidence) and Siggins (in his written statement) regarding threats and/or intimidatory behaviour directed towards them by the applicant on 5 and 15 March 2002, and the consequential issuing, by a Clerk of the Court of Petty Sessions, Perth, of an interim Violence Restraining Order and a Misconduct Restraining Order (effective until 27 March 2004) against the applicant for the benefit of the abovementioned CASA officers.
For the purposes of considering this matter, the Tribunal will assume that those allegations, as detailed in the officers' statements (see paragraphs 19-21 above), are true. On that assumption the Tribunal has no hesitation in saying that such conduct is a matter of very serious concern and cannot be excused or justified.
That conduct, however, was not typical or representative of the applicant's relations with CASA and its officers since at least 1993 which, as previously mentioned, have generally been good. Rather, that conduct can be explained as a very angry reaction by the applicant to particular action by those CASA officers which placed his aviation business and his very livelihood in jeopardy, and which he regarded - not unreasonably, in the Tribunal's opinion - as unfair and completely unjustifiable in the circumstances.
Viewed in that way, the applicant's conduct, while inexcusable and unacceptable, cannot fairly be regarded as indicating, of itself, a scant regard by him for the aviation laws or an inability or unwillingness on his part to relate professionally and constructively with CASA and its officers in the future. That conduct, in the Tribunal's opinion, does not of itself demonstrate that the applicant is not a "fit and proper person" for the purposes of reg 269(1)(d) of the Regulations.
93. Having regard to all relevant considerations concerning the applicant's compliance history in relation to the Regulations and his aviation-related conduct generally - especially in the period since 1993, which the Tribunal regards as more significant for present purposes than the pre-1993 period - the Tribunal is not satisfied that the applicant is "not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of" a pilot licence, within the meaning, and for the purposes, of reg 269(1)(d) of the Regulations.
In the latter case it appears, from reg 5.09(3) of the Regulations, that the category of matters that may be taken into account is limited to matters that relate to the safety of air navigation.
In the former case, however, it is appropriate that consideration be given not only to matters relating to the safety of air navigation but also, inter alia, tothe licence holder's past record of compliance, or non-compliance, with the Regulations during the currency of their licence as indicative of the likelihood of their complying, or not complying, with the Regulations in the future, and of their respect, or lack of respect, for the Regulations and civil aviation regulatory legislation generally.
The Tribunal accepts Mr Shields' submission that, in the present case, it is appropriate for it to have regard to the applicant's conduct in his dealings with CASA officers in their professional capacities, and at least in so far as such conduct is indicative of the degree of the applicant's respect, or lack thereof, for the civil aviation laws and for those persons whose professional responsibility it is to uphold and enforce them.
90. The applicant's compliance history and aviation-related conduct over the last 20 years appear to the Tribunal to fall into 2 distinct periods.
Throughout the 1980s up until 1991, the applicant's aviation record was very poor, involving various contraventions of the Regulations resulting in adverse actions by the CAA and, indeed, in numerous criminal convictions for aviation-related offences (see paragraphs 5-14 above).
Since 1993, however, the applicant's aviation-related record has been generally very good. Apart from the weed-spraying incident at Jandakot Airport in 1999 which resulted in the applicant's being counselled by Mr James, a CASA District Flight Operations Manager, it appears that no adverse action was taken by the CAA or by CASA regarding the applicant until March 2002 following the Cessna float plane trailer take-off incident at Jandakot Airport on 10 January 2002. Furthermore, certain notable positive developments regarding the applicant's aviation qualifications occurred during that period, including:
* the issuing by the CAA of a commercial pilot (aeroplane) licence to the applicant on 15 October 1993;
* the grant of approval by the CAA on 10 February 1995 for the applicant to be appointed Chief Pilot of Repacholi Aviation Pty Ltd;
* the grant of approval by CASA, on 27 July 1998, to the applicant to act as an approved agricultural (aeroplane) pilot for the purpose of direct and indirect supervision.
91. The abovementioned weed-spraying incident in 1999 has not been found by the Tribunal to have involved a contravention of the Act or of the Regulations.
Manoeuvres executed by the applicant shortly after the above mentioned take-off incident on 10 January 2002 have, on the other hand, been found by the Tribunal to have involved a contravention of regs 157(1)(b) and 166(1)(g) of the Regulations.
The Tribunal has also found, however, that neither of those contraventions of the Regulations involved the unsafe operation by the applicant of the relevant aircraft or constituted a failure by the applicant in his duty with respect to any matter affecting the safe or efficient navigation or operation of that aircraft.
92. There remain for consideration the allegations made by CASA officers Dolby and Farquharson (in their written statements and in their oral evidence) and Siggins (in his written statement) regarding threats and/or intimidatory behaviour directed towards them by the applicant on 5 and 15 March 2002, and the consequential issuing, by a Clerk of the Court of Petty Sessions, Perth, of an interim Violence Restraining Order and a Misconduct Restraining Order (effective until 27 March 2004) against the applicant for the benefit of the abovementioned CASA officers.
For the purposes of considering this matter, the Tribunal will assume that those allegations, as detailed in the officers' statements (see paragraphs 19-21 above), are true. On that assumption the Tribunal has no hesitation in saying that such conduct is a matter of very serious concern and cannot be excused or justified.
That conduct, however, was not typical or representative of the applicant's relations with CASA and its officers since at least 1993 which, as previously mentioned, have generally been good. Rather, that conduct can be explained as a very angry reaction by the applicant to particular action by those CASA officers which placed his aviation business and his very livelihood in jeopardy, and which he regarded - not unreasonably, in the Tribunal's opinion - as unfair and completely unjustifiable in the circumstances.
Viewed in that way, the applicant's conduct, while inexcusable and unacceptable, cannot fairly be regarded as indicating, of itself, a scant regard by him for the aviation laws or an inability or unwillingness on his part to relate professionally and constructively with CASA and its officers in the future. That conduct, in the Tribunal's opinion, does not of itself demonstrate that the applicant is not a "fit and proper person" for the purposes of reg 269(1)(d) of the Regulations.
93. Having regard to all relevant considerations concerning the applicant's compliance history in relation to the Regulations and his aviation-related conduct generally - especially in the period since 1993, which the Tribunal regards as more significant for present purposes than the pre-1993 period - the Tribunal is not satisfied that the applicant is "not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of" a pilot licence, within the meaning, and for the purposes, of reg 269(1)(d) of the Regulations.
In particular the DP relied on (probably because it was most relevant in regards to CAR 269) Griffiths and Civil Aviation Authority (1994), to help define the ‘Fit and Proper Person’, see here:
"(16) We do not consider that we should limit the matters, to which we may have regard, to those events occurring immediately prior to the variation of the pilot licences and related only to his actions as the holder of those licences.
In assessing whether he is a fit and proper person to carry out the functions, duties and responsibilities of a licence holder, one of the aspects we need to assess is how he has carried out those, or similar or related, functions, duties and responsibilities in the past. Past actions in respect of those matters are one guide to how he may be expected to behave in the future.
It is not, however, simply the events immediately prior to the variation of the licences which are relevant but the pattern of his past behaviour in areas related to that under consideration.
Individual events and actions taken out of that broader context are not necessarily an accurate reflection of a person's fitness or otherwise".
In assessing whether he is a fit and proper person to carry out the functions, duties and responsibilities of a licence holder, one of the aspects we need to assess is how he has carried out those, or similar or related, functions, duties and responsibilities in the past. Past actions in respect of those matters are one guide to how he may be expected to behave in the future.
It is not, however, simply the events immediately prior to the variation of the licences which are relevant but the pattern of his past behaviour in areas related to that under consideration.
Individual events and actions taken out of that broader context are not necessarily an accurate reflection of a person's fitness or otherwise".
Why then in JQ's case wasn't the Repacholi AAT decision used as a guide/precedent in dealing with defining Car 269 (1)(d)? Or is it just the case that Repacholi had better legal representation than JQ?
Here is the link for Quadrio AAT decision, para 67 onwards deals with 269 (1)(d):
Quadrio and Civil Aviation Safety Authority [2011] AATA 709 (12 October 2011)
Last edited by Sarcs; 15th Jul 2012 at 11:32.
In reference to Quadrio, I took these sequential photos from a professionally piloted R44 in which I was a front seat passenger some weeks ago. The pilot has no knowledge of the Quadrio matter and was most definately not "fooling around" for my benefit when these images were taken. He wouldn't even know why I took them.
.......pprune seems to hate google
.......pprune seems to hate google
Last edited by Sunfish; 15th Jul 2012 at 22:32.
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casa and the regs
A note from RAA in:
Civil aviation legislation
Some noteworthy sections of the Civil Aviation Act 1988, the CAR 1988 and the CASR 1998
Just to remind us, JQ was charged under section 20 of the CAA, with a 5 year penalty, and any further State charges [doubtless under Queensland Law, the following could apply to the video taker]
A high risk indeed!
Civil aviation legislation
Some noteworthy sections of the Civil Aviation Act 1988, the CAR 1988 and the CASR 1998
Legal effect of the CARs and regs
Sport and recreational pilots and aircraft owners are not exempt from any part of the CAA 1988.
In the Act, 'aircraft' is defined as 'any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth's surface [e.g. hovercraft]'.
A notable facet of the CAA 1988 is that it specifies imprisonment for some specific offences related to aircraft operation; for example, up to two years imprisonment for flying an unregistered aircraft.
Chapter 2 of the Australian Criminal Code applies to all offences created by the Civil Aviation Act 1988.
So, if charged by State or Federal police (for example) with an offence created under the Civil Aviation Act the penalty is likely to be more significant than if charged with an offence created under the CARs or CASRs.
For example, CAA Section 20A states: '(2) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.
Penalty: Imprisonment for 5 years.'
If charged under state legislation the penalty could be higher; for example, the Victorian Crimes Act states:
'A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence.
Penalty: Level 5 imprisonment (10 years maximum)' .
(Note: RA-Aus registered aircraft were re-classified as 'Australian aircraft' in a September 2004 amendment to the Act, thereby removing an anomaly where RA-Aus aircraft were legally 'neither Australian aircraft nor foreign aircraft, but were effectively treated as foreign aircraft that were allowed to operate in Australia but did not have the nationality of any ICAO contracting state'. Thus since 2004 persons flying RA-Aus registered aircraft are clearly subject to the penalties specified in CAA 1988 and the regulations.)
The penalties in the CARs and CASRs are generally fines expressed in terms of 'penalty units' — a convenient method for State and Federal governments to index their income from fines.
The monetary value of one penalty unit in the Commonwealth legislation is adjusted from time-to-time by the Federal Treasurer and is currently around $110, so a 50 penalty unit offence (the maximum) may result in only a $5500 fine rather than a term of imprisonment.
The words appearing under some CARs or CASRs 'An offence against regulation ... is an offence of strict liability' imply that the offence is such that it is not necessary to show a criminal intent in order to prove a breach of the regulation — much the same as the road traffic regulations.
Sport and recreational pilots and aircraft owners are not exempt from any part of the CAA 1988.
In the Act, 'aircraft' is defined as 'any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth's surface [e.g. hovercraft]'.
A notable facet of the CAA 1988 is that it specifies imprisonment for some specific offences related to aircraft operation; for example, up to two years imprisonment for flying an unregistered aircraft.
Chapter 2 of the Australian Criminal Code applies to all offences created by the Civil Aviation Act 1988.
So, if charged by State or Federal police (for example) with an offence created under the Civil Aviation Act the penalty is likely to be more significant than if charged with an offence created under the CARs or CASRs.
For example, CAA Section 20A states: '(2) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.
Penalty: Imprisonment for 5 years.'
If charged under state legislation the penalty could be higher; for example, the Victorian Crimes Act states:
'A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence.
Penalty: Level 5 imprisonment (10 years maximum)' .
(Note: RA-Aus registered aircraft were re-classified as 'Australian aircraft' in a September 2004 amendment to the Act, thereby removing an anomaly where RA-Aus aircraft were legally 'neither Australian aircraft nor foreign aircraft, but were effectively treated as foreign aircraft that were allowed to operate in Australia but did not have the nationality of any ICAO contracting state'. Thus since 2004 persons flying RA-Aus registered aircraft are clearly subject to the penalties specified in CAA 1988 and the regulations.)
The penalties in the CARs and CASRs are generally fines expressed in terms of 'penalty units' — a convenient method for State and Federal governments to index their income from fines.
The monetary value of one penalty unit in the Commonwealth legislation is adjusted from time-to-time by the Federal Treasurer and is currently around $110, so a 50 penalty unit offence (the maximum) may result in only a $5500 fine rather than a term of imprisonment.
The words appearing under some CARs or CASRs 'An offence against regulation ... is an offence of strict liability' imply that the offence is such that it is not necessary to show a criminal intent in order to prove a breach of the regulation — much the same as the road traffic regulations.
A high risk indeed!
QLD Crimes Act s467 Endangering the safe use of vehicles and related transport infrastructure
(1) A person who, with intent to prejudice the safe use of a vehicle or related transport infrastructure or to injure property in a vehicle or related transport infrastructure, does anything that endangers, or is likely to endanger, the safe use of the vehicle or related transport infrastructure commits a crime.
Maximum penalty—life imprisonment.
(2) In this section—
do anything, for a person who has a duty to do the thing, includes omit to do the thing.
in includes on related transport infrastructure includes a road, railway, runway, station, airport, terminal, wharf, jetty or other structure used by a vehicle to travel or by persons using a vehicle to travel.
(1) A person who, with intent to prejudice the safe use of a vehicle or related transport infrastructure or to injure property in a vehicle or related transport infrastructure, does anything that endangers, or is likely to endanger, the safe use of the vehicle or related transport infrastructure commits a crime.
Maximum penalty—life imprisonment.
(2) In this section—
do anything, for a person who has a duty to do the thing, includes omit to do the thing.
in includes on related transport infrastructure includes a road, railway, runway, station, airport, terminal, wharf, jetty or other structure used by a vehicle to travel or by persons using a vehicle to travel.
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The Quadrio witness
Well McComick - In September 2008 a helicopter pilot was filmed in a YouTube clip, with casa dropping the case due to the CDPP advice in July 2010.
However, casa continued into the AAT [in mid-2011], where the accused Mr. Quadrio did not admit any guilt.
He was in fact admonished by the member for "not owning up".
The member who admitted he knew the casa "expert", but did not recuse himself.
The prime casa witness was a "Coglan", the same one as below [which appeared in the Cairns Post on 22nd February 2014], whose statement did not even state the same place for the flight as the casa "show-cause notice":
However, casa continued into the AAT [in mid-2011], where the accused Mr. Quadrio did not admit any guilt.
He was in fact admonished by the member for "not owning up".
The member who admitted he knew the casa "expert", but did not recuse himself.
The prime casa witness was a "Coglan", the same one as below [which appeared in the Cairns Post on 22nd February 2014], whose statement did not even state the same place for the flight as the casa "show-cause notice":
