Originally Posted by
michigan j
Dick, I know what you are saying. And it is an interesting question, and provided me with an interesting diversion for an hour or so.
But I don't think that s9A is as all-encompassing as it appears. It talks of a "most important consideration" which I think someone above mentioned does not mean "only consideration".
Also, the legislation should be read as a whole. I think s9A "colours" further sections of the legislation.
Some of the case law talks about
"In reaching this conclusion, the Tribunal is mindful of the requirement in s 9A(1) of the CAA which dictates that a suitably cautious approach must be taken to assessing the risks posed to the safety of air navigation by ..."
and
"However, I am satisfied those provisions merely acknowledge the Parliament's intention that safety of air navigation has always been the principal end to be satisfied by the Civil Aviation Act 1988 and that end has now been expressed in clear words by the Parliament."
And policy that is not contradictory to legislation such as the one I lifted from the CASA website (and I assume there is a policy rather than a webpage) is relevant as well.
"In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634, Brennan J observed that policy is a key factor in attaining consistency in decision making. Consistency is a desirable goal in administration, as the application of differing standards in the exercise of a power by administrators can only result in unfairness and a consequent lack of confidence in the executive. The AAT should therefore apply lawful policy unless to do so would work an injustice in the particular case or there are other cogent reasons for not doing so (2 ALD at 644-645). A similar view was expressed in Re Ruggeri and Secretary, Department of Social Security (1985) 8 ALD 338 at350. "
So, I would argue that a policy talking about ALARP and s9A are not inconsistent. And if ALARP is OK, then ETOPS should be as well...
Dick, I see that you are not willing to answer michigan j's response. While the cases he cites are AAT and therefore not binding, the principles used in those cases are derived from the High Court decision in
Project Blue Sky Inc. v ABA, which is most certainly binding. The case is the leading authority on the interpretation of legislation and I suggest that it be read before trying to embarrass CASA on this.
I understand what you are trying to do but posting what you believe to be rhetorical questions on this site are misplaced. Nothing will change in CASA until they are forced to change by political pressure.