Show Cause and CAR 269

[Sarcs]

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:

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.

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!"