CASA-Automatic Stay provisions changed 2009.

[Frank Arouet]

Automatic Stay Provisions changed 2009


CURRENT LAW

1. If you receive a show cause notice from CASA and then do not convince CASA to change their attitude towards you resulting in one of your rights being suspended, that decision is stayed for 5 days and the stay will continue if you, within 5 days, file proceedings in the AAT to review that decision.
2. If you do file in the AAT the CASA decision is stayed, that is, not carried out or is of no effect for 90 days.

NEW LAW - (Effective the day after Royal Assent)

1. You can still file in the AAT within the 5 days and the initial 5 day stay continues. However, no longer will you obtain an automatic stay for 90 days.
2. In fact your stay could finish within a week!
3. You only receive the stay until such time as you convince the AAT that you should receive the benefit of a stay pursuant to s.41(2) of the AAT Act. That is, a stay until your application for review is heard.
4. When you apply to the AAT after receiving a suspension notice, you apply for a review of the relavent CASA decision and a stay under the AAT’s section 41(2).

COMMENTS.
Assuming the Senate passes these amendments, they place an immediate onus on you to convince the AAT to continue a stay. Previously you had 90 days as a given. Now it only depends on how soon the AAT can hear your application for a stay.

Section 30DC of the Civil Aviation Act 1988 has not been amended. This is the provision where if there is, alleged by CASA, to have been a serious and eminent risk to air safety, CASA can serve you with a s.30DC 5 day immediate suspension. However, CASA then has to also file in the Federal Court within 5 days to get a continuance of their 5 day suspension.

I suspect that we will not witness many more s.30DC suspensions. Why would we when CASA can now simply serve you with a suspension notice and then it is up to you to carry the onus of showing the AAT that a stay should continue?

I cannot imagine CASA delaying your hearing in the AAT to get the stay continued. You can expect to come on for a hearing quickly. Then you will face CASA’s submissions to the AAT that the stay should not continue because the risk to air safety is too great, and that’s why they suspended you. The AAT will need to be robust and remain none fearful of overruling CASA’s predictable submission; that it is the expert in aviation safety and it has decided to ground this person so end of story.

Australian Commercial Airline Accidents (http://www.mckeown.com.au/articles/automatic-stay-provisions-changed-2009.htm)

[Dick Smith]

Frank, I understand that this proposed change in the automatic stay provisions has come about because of the Aero Tropics case. Would you know why in the case of Aero Tropics CASA did not use Section 30DC, and also why CASA did not use the administrative fines system?

I think most people would believe that if Aero Tropics was similar to Monarch, Seaview, or Aquatic Air, they would have had a pattern of not complying with regulations. In this case, the administrative fines and point system would have exposed the situation far earlier.

I look forward to your advice.

[Frank Arouet]

This is the advice I received.

CASA used 30DC and lost - thus this amendment -

YES -CASA should have used the Demerits system and then it would have been ground - perhaps.

[Dick Smith]

So why didn't the Federal Court support the CASA view?

Normally Federal Court judges are consevative and would not want to risk passengers lives- what would be in it for them?

[Frank Arouet]

Dick.

"Judges are usually above average intelligence -he/she could not see the reason the ground the operator pending their review of the CASA decision - so were CASA wrong? - Yes - thus why accept what CASA is attempting to do now?"

[Frank Arouet]

Albanese:

"The legislation also amends
provisions relating to the automatic stay of legally reviewable
decisions - making stays subject to a decision by the Administrative
Appeals Tribunal. This will ensure that when CASA takes enforcement
action based on serious safety concerns the automatic stay continues
only up to the time the Tribunal makes a decision on an application
for a stay. Mr Albanese said these changes were being made because the
routine application of the ‘automatic stay’ provisions of safety
related decisions has effectively nullified CASA’s ability to
suspend or cancel the authorisations of operators found to have fallen
well below an acceptable level of safety. The Minister said: “A
number of recent incidents have highlighted how access to legal
remedies such as ‘automatic stays’ can arguably have the
consequence of allowing operators to remain in the air despite
compelling evidence of serious safety deficiencies.”

http://www.aph.gov.au/hansard/reps/dailys/dr120209.pdf