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:
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.
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:
“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.”
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:
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.
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!):
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.
Q/ Why wasn't the Repacholi case considered as 'precedent' in regards to the JQ matter??