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.
The Deputy President, in making his decision, also referred to several past cases that dealt with reg 269/258. These were Maxwell v Dixon [1965] WAR 167 at 169; Re Taylor and Department of Transport (1978) 1 ALD 312 at 321; Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554 at 559.
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".
As a layman I would regard the Deputy President’s decision in regards CAR 269 (1)(d), as very considered, rational and current! It also gives due credence and consideration to a pilot's past career and dealings with the authority in matters of compliance/non-compliance, much the same as the driver blowing DUI for the first time!
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.