6. Third Element- The Exercise of Authority must be invalid or otherwise lacking lawful authority.
Fundamental to this entire matter is that Mr Alecks decision making is not supported by any legislation, CASA precedent, or external and independent legal advice. It is the application of his opinion only. Was his decision making, invalid and lacking in lawful authority? I am fully satisfied as the person most impacted, that it was, and that it was not well intentioned.
Mr Aleck holds significant power within CASA. We work in a complicated and often confusing regulatory environment. In such an environment there is the possibility for those rules and regulations to be manipulated in order to achieve a desired outcome, such as the closure of a controversial business owners business.
He was the sole decision maker as to the legality of my operation.
I am fully satisfied that Mr Alecks actions, decisions and his application of opinion was unfair, unjust, and ill intentioned, but even more than that, it was also invalid and lacking in proper lawful authority.
I emphasise here that this entire matter was a matter of the legality or not, as to the structure that CASA had permitted me to operate with for a decade, and now Mr Aleck determined to be unlawful.
It was not a matter of the organisation being deficient in any way against any identified quality outcomes at all. That in fact what makes the proportionality of this matter so inexplicable.
CASA can close a business because it is either unlawful or unsafe. In my case, there was no safety case, or any concerns ever raised by CASA. CASA closed my business down because Mr Aleck declared it unlawful. That initial notification includes terminology such as “contravention of”, “subject to enforcement action”, “operations not approved ”etc. As the Owner of the Business, I had no idea the notification was coming. No concerns had ever been raised throughout the last 10 years. was shocked and concerned. I immediately had concerns about “intent”.
In the initial notification and in subsequent face-to-face meetings, CASA identified to me that the structure that I had adopted for the last decade since I commenced operations in 2006 was now in October 2018, overnight determined to be unlawful against three regulatory criteria. One from the year 1988, being almost two decades before I even commenced operations, the other from 2006, being the year, I commenced operations and the third was against a regulation that was introduced only two months prior to CASA determining that my operation was unauthorised.
Mr Aleck applied his new interpretation of the legislation to my two businesses. One being APTA, the other being my flying school of 10 years, Melbourne Flight Training. Both were impacted significantly and immediately. I will deal with these matters in detail in the section titled ‘Damages”.
That initial notification was very clear and identified three regulatory breaches that I referred to earlier. CASA used those regulations to place restrictions on my businesses ability to trade.
CASA had clearly advised me that the “structure was not permitted. maybe some time in the future but that time is not now”.
Those alleged regulatory breaches as outlined in that initial notification of October 2018 were.
· CASR 141.050
· The Aviation Ruling and
· CAA s29.
A copy of that initial notification can be accessed here
https://www.dropbox.com/s/k3qn3qdgoa...ation.pdf?dl=0
I will attend to those breaches in that order, and the reasons why I believe that Mr Alecks actions and decisions were not valid, and they were unlawful.
Please understand I am not a lawyer, and I am not presently taking legal advice on this. I am an individual significantly impacted by Mr Alecks actions and decisions, I have limited resources. I am doing my best to convey these matters as clearly and concisely as I can.
With the passage of time, I am confident that Mr Aleck is now aware that his action was unlawful.
The decision that Mr Aleck made was that the structure I, and many others had operated with for over a decade had now become unlawful. I was the first person in Australia to have, what was a previously authorised CASA structure determined unlawful by CASA, and specifically, Mr Jonathan Aleck.
That structure that CASA had always accepted was:
· There was only one CASA Authorisation Holder, operating a Flying School and holding the required CASA Authorisation referred to as an Air Operator Certificate (AOC). Referred to as “Entity A”
· Typically, a regional aero club, “Entity B”, may wish to operate a flying school to deliver flight training. The aero club is run by a volunteer committee, who each have fulltime employment outside of aviation. They have no expertise at all in the complicated regulatory environment of running a flying school.
· Entity B would approach Entity A and ask that Entity A operate a flying school on behalf of Entity B. Entity A being the one and only holder of the CASA Approval to operate a flying school. That being the single AOC.
· This required formal CASA approval by way of an application process. From my experience of 25 years in the industry, this was always formally approved by CASA to every operator on every occasion, as it was with mine throughout its decade of operation. That was, until CASA determined that I was operating unlawfully in October 2018. That is despite CASA fully revalidating my entire structure only 18 months prior.
CASR 141.050 Civil Aviation Safety Regulations 1998 (legislation.gov.au)
This regulation is from the new suite of regulations introduced on September 1st, 2018. CASR 141.050 advises that “a person commits an offence if they conduct flight training and do not have the Certificate or approval to do so”.
My response is very clear on this matter. “No person ever conducted flight training that they did not have the certificate or approval to do. None. Ever.
If CASA believe that is the case, they should be able to nominate the person, date, time, or some other supporting piece of evidence to suggest that ever happened or justify any concerns that it was a possibility to happen.
For CASA to use CASR 141.050 as the basis to place immediate restrictions on my businesses ability to trade, in my opinion, had no basis in law, and was unlawful, and particularly so CASA as have at no stage been able to identify what led them to make that allegation.
In your investigation, could you respond specifically to CASR 141.050 and advise if CASA still claims that I breached this regulation, now that Mr Aleck has had four years to consider this matter.
I maintain that CASA had no valid basis to raise this alleged breach. It was a new regulation being only introduced two months prior, however I was the first person in Australia to have allegedly breached this regulation.
An explanation of CASAs interpretation is a fair and reasonable request. It isa new regulation, it appears to be applied in a very confusing manner, and potentially not as intended. Considering that this was used as a regulation to close by business, the wider industry is also entitled to CASAs interpretation. It has the potential to have significant implications.
The Aviation Ruling
An Aviation Ruling, in its simplest form, is a recommendation from CASA. It does not have a “Head of Power” and is advisory in nature.
The Aviation Rulings were a very discrete document that was not widely known about. In fact, many CASA personnel were not even aware of them. Most of my peers in the flight training industry advised they also were not aware of them. They were very rarely published and were quite industry specific. There had never been an Aviation Ruling that was directed at the flight training industry, therefore the document was not widely known of. In fact Aviation Rulings weren’t addressed in the Air Law syllabus that CASA published, and required to be taught.
Fortunately, the CASA employee that I was dealing with at the time of its release in 2006 bought it to my attention and suggested very early on that I consider the document as I was operating in a multi entity structure under my AOC at the time of its introduction, and some considerations may be relevant to the flight training sector.
They were, and they were attended to by my CASA approved procedures in 2006, and again in April 2017 when my entire structure was redesigned and approved by CASA to meet the new upcoming regulatory requirements of September 1st, 2017 (later postponed 12 months by CASA)
A fuller CASA explanation of what an Aviation Ruling is can be found via the following link. This link also contains a copy of the specific Aviation Ruling that CASA used as the basis to close my business down, and some correspondence from me to CASA questioning its applicability to the Flight Training Industry.
Before proceeding, it is important to understand that there are two very separate and distinct categories of the General Aviation Industry. One being Charter (carriage of passengers and freight), and the other being Flight Training.
They are obviously and understandably, very different categories of the aviation industry.
The Flight Training sector obviously delivers flight training. In our case we were a Registered Training Organisation #22508, delivering a Diploma in Aviation. We are effectively “the school” and like all schools utilise teachers to deliver a syllabus of training, leading up to a flight test, as a prerequisite for entry into the workplace.
The Charter industry is “the workplace”. This is after the flying school once the student has graduated and left. It will most likely be the pilots first job after graduating. They will be earning an income and working as a commercial pilot flying passengers and freight.
These industries are as different as chalk and cheese, albeit that they both utilise aircraft. One environment delivers training to students, and the other is the workplace.
Of course, there is some regulatory overlap, however CASA very clearly identifies and regulates these two industries to significantly different criteria, as would be expected.
The point of this being that the nature of the different industries brings up completely different challenges, and each operates to a completely different regulatory structure. The “school” is fundamentally different to the “workplace”, just as in all industries, and CASA responds to those industries differently, as they should.
It is not reasonable that CASA would use an Aviation Ruling designed for one sector of the industry i.e., Charter to be applied to the other i.e., Flight Training.
The Aviation Ruling was introduced to attend to the Charter industry and not the Flight Training industry. That is the advice that CASA provided to the Flight Training industry, and me personally in 2006 when CASA released the Aviation Ruling.
The fact that Mr Aleck had chosen to use the Aviation Ruling intended for the Charter Industry as the initial basis of the action against me in the Flight Training industry was both surprising and concerning for me. I had immediate concerns about “intent”. It was not a valid document to be using.
After approximately 7 weeks of trading restrictions in place, CASA did concur that it was the inappropriate document to be using and it was “taken off the table”, although the trading restrictions remained in place, despite my protestations, presumably because CASA put such significant weight on the other two pieces of legislation that they used, being CASR 141.050 which I have already attended to, and CAA s29 which I will attend to shortly.
Nevertheless, the trading restrictions stayed in place, and were not lifted.
The background to the Aviation ruling was that a Charter Company, not a Flight Training Company, operating out of Essendon Airport many years ago had its CASA Air Operator Certificate (AOC) suspended by CASA due to questionable maintenance practices. Overnight that Company approached another Operator and continued operating under the other Operators AOC, probably I assume in order to continue operations, and avoid the CASA restrictions.
CASA introduced the Aviation Ruling as a response to that practice in the Charter industry. As to the appropriateness of that response, I have no experience in the Charter industry, so would not be qualified to comment.
The introduction of the Aviation Ruling in 2006, did create initial concern from the Flight Training industry as we sought clarification on the applicability of it, and that is the recollection of my peers in the industry. As a number of Operators including myself were operating in the multi base, multi entity structure, clarification of this from CASA was essential for continued operations.
Whereas two or more operators the Charter Industry may have operated under the one AOC to circumvent obligations, the flight training industry used the structure with full and formal CASA approval for very different reasons.
Often a rural aero club may have facilities, refuelling, aircraft, maintenance, and even have a local junior flight instructor eager to start their career teaching at the local aero club. Unfortunately, due to the Aero Club committees lack of expertise in flight training, they are unable to deliver flight training, they don’t have an AOC, and have difficulty attracting the required Key personnel, who are in short supply, and most especially in rural areas.
More significantly, the Aero Club Committee are not willing or able to hold a CASA issued AOC to deliver flight training. They have no legal ability to deliver flight training. They have no operational control over anything, other than the aero club bar. That voluntary committee does not want to run a flying school, they want to pull beers and run a social aero club.
The Aero club would approach an established flying school who hold the approval and have the expertise, and enter into an arrangement with the flying school, being the sole AOC Holder to deliver operations at the aero club, on their behalf. This was a formal process requiring CASA consent and formal approval. It was commonplace practice.
When operators in the flight training industry entered such arrangements, CASA would have absolutely no involvement or requirements as to the nature of the commercial arrangement between the entities. This requirement placed on me was an industry first. I have absolutely no objection to it, although it was an unusual level of involvement for CASA to become involved in commercial contracts.
CASA would however be heavily involved, and rightfully so, in aspects of safety, regulatory compliance, operational control etc before formally approving that arrangement to proceed.
In such arrangements where a Flying School such as mine did operate a flying school on behalf of an aero club, the Flying School, being the one and only AOC Holder with the one and only group of Key personnel, would take on all responsibility as is specified in the legislation.
In such situations CASA would have negligible engagement with the aero club committee, as they were not mentioned in the legislation. They are effectively a voluntary committee for the running of the aero club as a whole.
All communication with CASA would be with the sole AOC Holder, who was taking on responsibility, and not the aero club committee who are not “Key Personnel”.
This entailed the one and only flying school holding the only AOC, and that AOC Holders Key Personnel, to operate a flying school utilising the Aero Clubs existing infrastructure and resources i.e. junior instructor, buildings and facilities, maintenance facilities, aircraft etc.
Obviously with the one and only AOC Holder being accountable for all operations at all bases conducted under the AOC.
This existing practice in the Flight Training Industry, was permitted to continue uninterrupted after the introduction of the Aviation Ruling in 2006.
The CASA explanation of this matter, and why the Aviation Ruling, did not apply to the flight training industry was:
At the time, the practice of more than one flying school operating under a single AOC in the flight training industry was accepted and formally approved by CASA. CASA deemed that the significant differences between the Charter Industry and the Flight training industry meant that the Aviation Ruling applied to the Charter Industry only, and not to the Flight Training industry. The industry differences were significant enough that it did not apply.
That is evidenced by the fact that many Flight Training operators continued operating in that way, as I did, from its issue in 2006 right through until October 2018, when my structure of more than a decade was deemed unlawful, in part against that 2006 document.
CASA further advised that to clarify that distinction between Charter and the Flight Training Industry, CASA intended to remove Flight Training from the definition of “commercial purposes” in the legislation, although the Charter Industry would remain as a “commercial” operation in the legislation. That would clarify the confusion about the Aviation Ruling and its applicability to the Flight Training sector.
That proposed regulatory change was impacted by the multiple postponements of that legislation by CASA. it was originally scheduled for completion in 2006, although the legislation finally came through in September 2014. The pre and post, 2014 pieces of legislation can be accessed here.
https://www.dropbox.com/s/x5td8psqx4...tions.pdf?dl=0
Although the legislation may not have finally been introduced until 2014, CASAs intent was very clear, and CASA made that clear at the time in 2006, that the Aviation Ruling did not apply to the Flight Training Industry.
Irrespective of its applicability or not, I did not breach anything on the Aviation Ruling anyway.
Note that shortly after CASA used it against my business, interestingly, it was repealed by CASA, so can no longer be accessed on their website.
https://www.dropbox.com/s/lewmcp0nas...uling.pdf?dl=0
In the initial notification of October 23rd 2018, Mr Aleck quotes a specific written phrase from the Aviation Ruling, “
The AOC Holder at all times remains responsible for the actions of another person conducting operations under the AOC.”
However, Mr Aleck interprets that very clear and concise statement, that I agree 100% with, completely manipulates it and interprets it and applies it to my business in that initial notification as “
The Ruling does not permit an AOC Holder to authorise a third-party body corporate to conduct operations under its AOC.
I really don’t know how to respond to this. other than to say. No, it doesn’t. I’m no lawyer, but how on earth can I as the owner of a business be expected to interpret.
“
The AOC Holder at all times remains responsible for the actions of another person conducting operations under the AOC.”
as
“The Ruling does not permit an AOC Holder to authorise a third-party body corporate to conduct operations under its AOC.”
The Aviation Ruling does
not state that an AOC Holder is not permitted to authorise a third party to conduct operations under its AOC.
In fact, if it did state that then I suggest that the entire aviation industry would grind to a halt. Consider QANTAS or the RAAF, they would regularly have third parties conducting operations under the CASA approval referred to as an AOC. It is a normal way of doing business in the aviation industry.
Therefore, you understand that I question the lawfulness, validity, and intent of Mr Alecks interpretation.
The Aviation Ruling was not the valid document to be using to take such substantive action and close a business. The Aviation Ruling:
· Does not have a “Head of Power”.
- Was written in 2006 for an entirely different regulatory environment. i.e., was written for the CAR 5 regulatory environment that was discontinued on September 1st, 2014, and replaced by the CASR regulatory structure after that date, being over 4 years before CASA closed my businesses
- Was written for the Charter Industry, or what is referred to as Civil Aviation Regulation 206 (CAR206) operation for commercial purposes. CASA themselves determined that flying training was not a CAR 206 operation in September of 2014 and removed it.
- The terminology refers to personnel positions that are in CAR 206 operations, and do not exist in Flying Training organisations.
- On its release the flying schools were advised that in fact it did not apply to them, and that is the recollection of peers in the industry.
The Commonwealth Ombudsman in the Phase One Report advised “
Conceptually, I accept CASA's view that the Ruling may reflect broader policy considerations. Nevertheless, in my concluded view there was an administrative deficiency due to an absence of a direct relationship between the activity being regulated and the policy said to regulate it. This gave rise to ambiguity and uncertainty with the potential to cause detriment to those relying on the accuracy of the regime or, conversely, prevent detriment from occurring.
Significant detriment did obviously occur, and that is why I believe that an investigation should be conducted into Mr Alecks conduct.
Of note. In the Ombudsman’s Report of 25th June 2020, the Ombudsman Office also directs a comment towards CASA and states:
“Thank you for your advice that CASA will amend the Aviation Ruling to confirm the intent of the breadth of its application.”
Over two years after CASA gave that commitment to the Ombudsman’s office in June 2020, as at the time of writing in September 2022, CASA has still not amended the Aviation Ruling as they assured the Ombudsman’s office that they would over two years ago.
What CASA has done instead, is withdraw the Aviation Ruling, and not amended any other legislation to counter that removal.
That action alone suggests to me that CASA recognise that they have erred in using the Aviation Ruling as a document in support of the decision that I was operating unlawfully.
I am fully satisfied in my own mind and always was fully satisfied that the Aviation Ruling was not a valid and appropriate document to be using as the basis for closing down my business. The Ombudsman’s findings support my contention, and the fact that has since been repealed by CASA must surely raise concerns as to the validity of using that document. It was very much used as the cornerstone of CASA approach towards me during the first seven weeks, until it was “off the table”.