So, R. v Honkie is over but there still remains the May 8th CASA decision to get rid of Honk’s ATPL and CPL. On 26th June the AAT stayed this CASA decision until after the criminal case was over, and until a date before 30th November.
This means that Honk’s next visit to the Beak will be at the end of the current stay period, when he tries to persuade the AAT to overturn the CASA decision. This is, I believe, called “judicial review of administrative action”.
At the stay hearing in June, Tribunal Senior Member KL Beddoe made, among others, the following findings of “fact”:
Quote-
(e) Air Ngukurr provides passenger and cargo flights to and from Ngukurr where, for approximately six months of the year, the roads surrounding Ngukurr are flooded and the area is virtually isolated because of flood water leaving air transport as the only viable transport facility. It employs thirty people and provides an essential service to the local community.
(f) Air Ngukurr is associated with the Yugul Mangi Community Government Council and an Assistant Councillor of that Council and Director of Air Ngujurr has sworn that, although the applicant is of Maori heritage, he has a close relationship with the local people; works well with the people and the Directors of Air Ngukurr; is important to both the company and the community; and speaks, interacts easily with the Aboriginal clans; and would be difficult to replace.
(q) The company currently employs the applicant on non-pilot duties but says it will not be able to afford this beyond the end of July 2003 and will need to dismiss the applicant from employment if he is still unable to do commercial pilot flying.
(s) The applicant asserts that his family will suffer financial hardship if the company terminates his employment and he loses $60,000 salary with no prospects of alternative employment
Tribunal Senior Member KL Beddoe went on to describe some legal precedents for inclusion of issues into his decision making process. Two of these issues are; air safety, and the applicant’s (Honk’s) prospect of success in the eventual review hearing at the end of any stay period. Beddoe dealt extensively with these two in his determination, and these two plus the fact that Honk’s criminal trial was then pending, were the main reasons for a stay being granted.
The third issue is the imposition of any hardship to the applicant, Air Ngukurr, and the Ngukurr community, caused by CASA’s cancellation of Honk’s licenses. The hardship-related facts that he goes on to describe as relevant, but not crucial, to his decision to allow the applicant to retain his ATPL / CPL until the eventual review, are:
Quote-
(b) the applicant is the controlling mind of the company in air operations - the respondent asserts he is the defacto Chief Pilot - with likely detrimental consequences for the company if it is forced to dismiss him as an employee;
(c) the applicant and his family are likely to suffer short-term financial hardship if he is dismissed by the company at the end of July;
(i) in particular, I have taken into account the interest of the parties, the company and the Yugal Community. The community has a particular interest in the company continuing to provide air-services to the community.
Viewers may now reach for their tissues.
Note that these issues were considered in June only in relation to a decision to defer CASA’s cancellation of the licenses, and not to review the cancellation itself, which is next. What interests me is……will the AAT also consider the same facts and give the same weight to hardship, in the forthcoming review hearing as it did in the June stay hearing ?
Creampuff ! You’re a legal type - what does Natural Law and AAT procedure say about this ?
Because…….while the above factual findings and weighting may have seemed reasonable to Tribunal Senior Member KL Beddoe in Brisbane, most of us with red Ngukurr dust on our boots know otherwise. These “facts” would have first appeared at the AAT in the affidavits of Andrew Robertson, Lyn Mott, and other luminaries.
To quote again;
Quote-
Air Ngukurr…… provides an essential service to the local community;
(Honi).. would be difficult to replace ;
… with likely detrimental consequences for the company if it is forced to dismiss him as an employee;
I could go on but just read the paragraphs again…some of these “facts” would verge on perjury in a court. The true fact is that the entire gang could be deported to their country of origin, with the money they have made from Ngukurr, and no one would be disadvantaged for more than half a day !
Except of course for a collection of Ngukurr clan leaders, some of whom are prone to providing affidavits to AAT hearings, and whom would need at least a couple of days to sort out favourable financial arrangements with any new arrivals who replaced the Kiwi Clan…
So, Creamy; other issues will be considered in the review hearing later this year, but considering hardship alone, if it is an issue, will the AAT be able to cross examine witnesses who present the same dubious “facts”, and examine any supporting documents ?
Whether CASA can find any witnesses/evidence of it’s own to rebut any claims of terrible hardship for both Honi and Ngukurr is another question.
The regular Honi-antics would actually be not too out of place in Kingsford-Smith’s era, however passengers are not paying for the Southern Cross and CASA thinks that era is in the past and that what is regularly happening has no place in the NT of the twenty first century (there actually is such a thing).