I was sure I had seen the word
accountable somewhere in the CAsA documents. There is of course an '
opt out clause'
From the Flight Examiners Handbook.
Civil Aviation Safety Authority - Flight Examiner Handbook
Director of Aviation Safety Preface
Foreword
As a Commonwealth government authority, CASA must ensure that its decision-making processes are effective, fair, timely, transparent, consistent, properly documented and otherwise in accordance with the requirements of the law.
Most of the regulatory decisions CASA makes are such that conformity with authoritative policy and established procedures will be conducive to the achievement of these outcomes. From time to time, however, decision-makers will encounter situations in which the strict application of policy, in the making of a decision involving the exercise of discretion, would not be appropriate. Indeed, in some cases, the inflexible application of policy may itself be unlawful.
This preface and the following Introduction, explains the way in which the policy and processes set out in this manual are to be used by all CASA’s personnel when making decisions in the performance of their functions, the exercise of their powers and the discharge of their duties. It also explains the processes to be followed if it appears that a departure from policy is necessary or appropriate.
Mandatory Use of Policy and Procedure Manuals
This manual is one of the set of manuals and other documents which comprise CASA’s authorised document set. The authorised document set contains the policy, processes and procedures with which CASA personnel are expected to comply when performing assigned tasks. All CASA personnel are required to have regard to the policies set out in this manual.
Except as described in the Introduction, CASA decision-makers should not depart from these policies, processes and procedures.
Terry Farquharson
Acting Director of Aviation Safety
Introduction
Regulatory Decision Making
Where the legislation provides for one, and only one decision—the “correct” decision—is the only decision open to CASA. However, most of the decisions CASA makes involve the exercise of discretion. In such cases, there may well be more than one acceptable or correct decision. In these cases, the law requires that CASA makes the “preferable” decision, that is, the most appropriate decision, having regard to the overriding interests of safety and the obligation to be fair.
In all such cases, CASA is bound to act in accordance with the applicable rules of administrative law. These rules govern how CASA arrives at the ‘preferable’ decision in any given case. Adherence to these rules is a requirement, not an option. Decisions and actions taken in contravention of these rules are unlawful, unenforceable, and in most cases invalid. CASA is legally accountable for the decisions it makes, and CASA decision-makers are obliged to avoid the appearance, as much as the reality, of unlawful decision-making.
Sound and lawful regulatory decision-making is generally governed by the 10 rules of administrative law summarised below. Adherence to these rules is essential to CASA’s obligations of accountability and good governance.
1. Natural Justice (Procedural Fairness)
• Hearing Rule. Persons affected by CASA’s decisions have a right to be heard. To be meaningful, the hearing rule normally requires that CASA provides persons with notice (usually in advance) that a particular decision is going to be taken, and the reasons for the decision CASA proposes to take. Without notice and a statement of reasons, there may be little point to providing a person with an opportunity to be heard.
• Rule Against Bias. Decision-makers should not have a personal or pecuniary interest in the outcome of their decisions. Neither may decision-makers prejudge (or pre-determine) matters in respect of which they are called upon to make a decision.
2. A decision-maker must not act for improper purposes. Even if the purposes for which a particular decision are lawful, the decision may only be taken for the purposes specifically authorised by the law under which the decision has been taken.
3. A decision-maker must not take any irrelevant considerations into account in coming to a decision.
4. A decision-maker must take all relevant considerations into account in coming to a decision.
Note: Applicable Policy is Always a Relevant Consideration.
5. A decision-maker must act on the basis of evidence, not mere supposition or speculation.
6. A decision-maker must not formulate requirements in vague or uncertain terms.
7. A decision-maker must not inflexibly apply policy (although departures from policy will normally need to be justified).
8. A decision-maker must not act under dictation (although this does not preclude adherence to formal directions, compliance with lawful conditions in relation to the process by which a decision is taken or the obligation to consult in the process of considering a decision).
9. A decision-maker must decide the matter within a reasonable time.
10. A decision maker must not act in a way that is manifestly unreasonable. A decision must not be so unreasonable that no reasonable person would make such a decision.