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CASA, er 'Say Again"

 
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Old 17th Jan 2002, 04:25
  #61 (permalink)  
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Unhappy

In my original post of 4/1/02 I was airing my frustration at the 'Interpretation' part of the CAR's. The Reg's themselves cause me enough (and so it seems, others) frustration that I have to resort to the Interpretation section for clarification. Now it seems I'm in deep manure for the sake of 15 feet! Perhaps that says enough of the mindset of the 'authors' of the document originally and those who now walk around administering that document.

Thanks to all contributors for an enlightening 'airing'.

Disco
(Who retreats now to try and get his head around the 5 Maintenance NPRM's & the Airspace proposal)

[ 17 January 2002: Message edited by: Disco Stu ]</p>
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Old 17th Jan 2002, 05:26
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Stu
I believe the foregoing adequately demonstrates your point. Thanks for starting the thread.

With regard to your alleged indiscretion:
1..How did they determine your height?
2..What is the datum for determining height over a built up area? Ground level? Highest roof/tower top? (The new draft doesn't specify)
3..Why have a minimum height in the first place?
If its for safety, can the prosecution demonstrate that your 'level bust' was both deliberate and unsafe? And would the illegal 985ft give your light aircraft the ability to glide to an open area that say a legal but flamed out Mirage 111 at 2000 ft couldn't reach?
If its for noise attenuation, would your light aircraft at 985 ft be any quieter than our Mirage with afterburner at 2000 ft?

If controllability, glideability and decibels are the basis for regulating minimum height, might it not be better to remove generalist restrictions from the regulations and rely on type specific and appropriate requirements in the POH. The regulation could then read "Comply with all requirements of the POH" .

Sorry if this doesn't make much sense. I'm still dazed from the 70's Music thread on JB
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Old 17th Jan 2002, 06:37
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Gentlefolk,

What a lot of windbags you are! Where is it going, this long-winded lawyer's picnic? What do you hope to achieve from your legal one-up-manship? Seems too-clever-by-half to this layperson who can't pick the bush lawyers from the real ones. Like Festus to St Paul, I'm tempted to observe that: "much learning doth make thee mad".
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Old 17th Jan 2002, 06:51
  #64 (permalink)  

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Jesus H Christ!!
And I am normally a placid chap.

Wondered if it will ever end.
Time to swing the prop, listen to the engine burst into life, savour the scent of the doped fabric, avgas burnt and unburnt. And then into the clear fresh air, the landscape sliding beneath, at whatever height, the gentle glide back to earth with the singing of the bracing wires. The joy of flight! A breath of fresh air. Let us not lose it.

[ 20 January 2002: Message edited by: pterodactyl ]</p>
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Old 17th Jan 2002, 13:49
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Four Dogs,

You have crossed some important civil rights issues of the offender.

Firstly the accused is innocent until proven guilty. Let us suppose Disco Stu has landed only to be met by a CASA investigator and informed of his transgression. An incident that he may totally be unaware of; alternatively he may have a valid reason for descending into the trouble he is in! At some point the investigator will form an opinion as to whether or not DS has breached R157. We will assume that DS has admitted to being PIC at the time and has provided all the necessary information (name, address, licence details, flight plan and aircraft M/R). We will assume that he has further complied with any lawful request to permit the investigator to examine and test the aircraft and any instruments fitted thereto.

The investigator now asks DS to state the events pertaining to the alleged offence. At some moment in time the investigator will form the opinion that DS has breached the regulations and also forms the intent to proceed against him. At this point the investigator must warn DS of his right to remain silent. This formal warning if not observed may and later challenged in court, may lead to any subsequent conversation or admission by DS as being disallowed as evidence. The CASA case may fail on the evidence of the investigator with no further witnesses being called.

If DS were to remain silent at the outset, he is exercising a basic right that may be attributed to John Libourne in 1641 and saw the demise of the Ecclesiastical Courts and the Star Chamber, the prerogative Court of King Charles 1.

[quote] "it will not help the magistrate or judge to assess reliability of the defence if nothing was offered at the time but heaps is offered in the court for the first time." <hr></blockquote>

In fact he may elect not to provide any evidence whatsoever either in the preliminary investigation or in court. The magistrate would be obliged to consider this basic right of the defendant and form his opinion only on the facts presented by the prosecution. A judge likewise would probably advise the jury that DS was exercising a basic right in not responding to questions by the investigator and that such a right should not sway the jurors opinion against the accused.

My advice to DS would be to shut-up, enter no plea and let them prove their case on the evidence available. A plea could then be entered into and rebuttal evidence offered.

I concur it is difficult to see a guilty party walk free. In many instances evidence that could convict is inadmissable.
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Old 19th Jan 2002, 06:28
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4dogs

You’re too modest. And I do earnestly apologise for teasing you rather than making directly the points I wanted to make. However, you did dangle the Chicago Convention bait – or, more accurately, red herring – and then make some rather sweeping statements about the effect of s 3A of the ANA and s 11 of the CAA. In any case, it’s all been worth it just for the unexpected joy of one of Father John’s fireside sermons! And a cameo appearance by pterodactyl, what’s more!

In the first hypothetical about the effect of the Chicago Convention, the local legislation itself provided the conclusive answer, though the operation of CAR 2(5) provides an interesting twist. (And everyone aside from 4dogs, please note again the effect of the word “if” in the hypothetical.)

There are two separate but interrelated issues. The first is the effect of ratification of the Chicago Convention under s 3A of the ANA; the second is the effect of the obligation imposed on CASA under s 11 of the CAA to perform its functions in a manner consistent with the obligations of Australia under the Chicago Convention and any other agreement between Australia and any other country or countries relating to the safety of air navigation.

I’ll talk about the second first, as you did. One of the most important aspects of Blue Sky is the very last paragraph of the judgment. The court, for the reasons some of which you quoted, had come to the conclusion that an act done in contravention of section 160 of the ABA (analogous with section 11 of the CAA) was not invalid. I think that at that point in the judgment, lots of people breathe a sigh of relief and think “now we can all get some sleep”. They fail to read and mark the significance of the final paragraph. The court goes on finally to say: [quote]In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision "may in particular cases be punishable". That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.<hr></blockquote>[bolding added]

So you see, even if the court were to find that Section 11 of the CAA is merely (in ‘old speak&#8217 <img src="wink.gif" border="0"> directory rather than mandatory (as I think the court would), the result is not that CASA is free to perform its functions in a manner inconsistent with the obligations of Australia under the Chicago Convention or any other agreement covered by the section. If, for instance, CASA has a discretion to do something in a manner consistent with the obligations of Australia under the Chicago Convention but fails to do so, CASA breaches s 11, and Blue Sky suggests that a person with sufficient interest is entitled to sue for a declaration that CASA has acted in breach of the CAA and, in an appropriate case, obtain an injunction restraining CASA from taking any further action based on its unlawful action.

As to the second issue, I think what you’ve said about Teoh is accurate so far as it goes. However, I think the key finding in the case is the majority’s decision that an unincorporated convention gave rise to a legitimate expectation on Mr Teoh’s behalf that the delegate considering his residency application would act in conformity with the convention, and thus procedural fairness required that Mr Teoh would be given prior notice and an adequate opportunity to present a case when the delegate proposed to make a decision inconsistent with that legitimate expectation.

In short, mere ratification produced domestic consequences. (Which is why the government got into such a tizzy about Teoh .)

So it seems to me that, even absent s 11 of the CAA, in circumstances where CASA has discretion to act but proposes to do so other than in conformity with the Chicago Convention, CASA is obliged to give people whose interests may be affected by that action adequate opportunity to present a case as to why CASA should instead act in conformity with the convention. While the scope for such action is rather narrow, given the extent of domestic law in relation to aviation, scope nonetheless exists and, accordingly, ratification of the Chicago Convention has, of itself, domestic consequences.

Either way, I think your assertions about 3A and 11 were a little too broad.

As to the penalty question about the onus and burden of proof: gold star! I would not have a clue about the correct answer, but needed someone to do some quick research for an essay I’m writing. Thanks, and happy flying.

PS CoodaS: RU X 77, 75, 3, 2OCU or ARDU?
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Old 20th Jan 2002, 08:01
  #67 (permalink)  
 
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CP
Only in my dreams, I'm afraid <img src="cool.gif" border="0">
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Old 22nd Jan 2002, 17:35
  #68 (permalink)  
 
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Dragchute,

The points that you raise are valid - I deliberately cut across them because I was reading between the lines penned by the very erudite and precise Creampuff and came to some conclusions about the items identified for response. For example, the issue of evidence to the required burden of proof was a given - hence, no need for any real discussions of the preliminaries. I took it to be all about circumstance since the fact was that Disco Stu was at 985 feet. Similarly, the intention to prosecute was a given.

My comments about remaining silent were not intended to suggest that one is not entitled so to do, merely that in circumstances where the facts establish a breach and the prosecution is persuasive in suggesting that none of the defences could reasonably apply, such silence is probably not the best option. Creampuff would undoubtedly know the answer, but I suspect that there are times when the defendant's silence can be held to be "no defence" rather than "no requirement to defend". My suggestions were always intended to avoid or minimise the risk/consequences of being found guilty.

Creampuff,

Yes, they were broad, perhaps unacceptably so, because I couldn't equate the outcomes in our environment to those of the much more precise circumstances of both Teoh and Blue Sky. I must admit that I am not convinced that the split decision in Teoh won't be split the other way next time - I understand that the High Court is not bound by its own precedents. In any case, the threshold question of what "expectations" could logically flow from the lingering 1940s nature of the Chicago Convention will be interesting - somewhat less clear than a very modern convention on the rights of children.

Better leave now before I awaken Uncle John again.
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Old 23rd Jan 2002, 08:02
  #69 (permalink)  
 
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Lead Balloon, I certainly underestimated your abilities. I congratulate you on your speed-reading and ability to rapidly absorb and presumably comprehend Creampuff’s convoluted legal diatribe!

January 14: at 01.57 Creampuff posted a 1,293 word post. Six minutes later at 2.03, you had read Creampuff’s post, drafted and posted a reply.

January 15: at 4.22 Creampuff posted a 267 word post. Seventeen minutes later at 4.39, you had read Creampuff’s post, drafted and posted a reply.

January 15: at 23.49 Creampuff posted a 193 word post. Seven minutes later at 23.56, you had read Creampuff’s post, drafted and posted a reply.

And it also works in reverse if one takes Creampuff’s responses to Lead Balloon’s postings between 1.50 and 4.39 on January 15.

There have been a number of similar near simultaneous postings. Don’t you two ever rest?

The word schizophrenia comes to mind but I’m not sure why! Wouldn’t it be wonderful if we could all access Danny’s “IP Logged” thingy and by the strangest coincidence both Creampuff and Lead Balloon’s IP were both in the same location, such as an Australian city, maybe Canberra, rather than Salt Lake City, Utah and Australia/India.

Lead Balloon, to which “Bob” were you referring when you posted:

“It can't be very good because they still don't know who Bob is!!!”

If indeed you are referring to me, I hardly keep my identity secret!

You have a great day. Both of you! . .
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Old 23rd Jan 2002, 08:25
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See what I mean, LB? Torres, whose first name is "Bob", thinks that any reference to "Bob" in this forum must be a reference to him.

Torres: I've already admitted that I'm Lead Balloon, a CASA lawyer dedicated to complicating the rules and entrenching lawyers in the system.

Anything else to which you would like me to admit?

There was one sensible aspect to your post: the logged IPs. But I'd already told you about that as well.

You should try to keep up with the plot, Sherlock.
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Old 23rd Jan 2002, 08:31
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Oops

Here I go again, how many minutes Torres.

I admit it. I am Creampuff, and I can understand things that he writes.

"Bob", I wouldn't know who you were if I fell over you.

IP addresses... Good luck. No Chance buddy.
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Old 23rd Jan 2002, 08:49
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LB: How's about this for a plan? I consent to Woomera comparing my logged IPs with your logged IPs, and then emailing Torres to tell him whether they're the same. Do you consent?

But wait a second....maybe I'm just a clever IT expert who can change IPs at whim....oh no...eyes crossing...brain overloading...
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Old 23rd Jan 2002, 09:06
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fish

I'd rather see Torres make a few more wild comments, more fun that way...

[ 23 January 2002: Message edited by: Lead Balloon ]</p>
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Old 23rd Jan 2002, 09:15
  #74 (permalink)  
 
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ROTFLMAO. .You lot are incorrigible, but great fun, even if I have to take a Bex with a cup of tea before reading your posts. <img src="rolleyes.gif" border="0">

Even if you did consent I have neither the desire nor time to do so, neither would it be our policy in accordance with absolute privacy, subject to the rules, to accede to such a request. Apart from all of that, I mean, how could I be sure that it is the real Creampuff granting the release

In any event we could all do with a bit of mystery in our lives. <img src="cool.gif" border="0">

I'm off to do some real work now, cheers. <img src="tongue.gif" border="0">
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Old 23rd Jan 2002, 09:26
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Sorry Woomera. I have a public confession.

"Creampuff" and "Lead Balloon" are both alter egos of Torres……… Sorry I miss lead you all.

Danny, please cancel my registrations as both "Creampuff" and "Lead Balloon".

Henceforth I will be only Torres (et al…….)!

. . <img src="frown.gif" border="0">
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Old 23rd Jan 2002, 09:56
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Lead Balloon: "Bob", I wouldn't know who you were if I fell over you.

May I refresh your memory? On 22 November 2001, in the thread "CASA Scores TRIFECTA!!! (Page 3)" you professed to intimate knowledge of myself and my business!

Loss of memory, schizophrenia, insomnia. The symptoms are increasing; the prognosis not good.

Maybe you've forgotten the time we met. I'm certainly trying to forget. In that I guess our feelings are mutual.

You got any jobs going in Canberra? Love to have the time to Proon that you seem to..... Both of you!



[ 23 January 2002: Message edited by: Torres ]</p>
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Old 23rd Jan 2002, 10:17
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Cool

Let me see if I get this.

You think I'm Creampuff.

You believe Creampuff when he says he's a lawyer in CASA complicating the system to ensure self perpetuating lawyers.

You know that you are Bob.

You believe me, Lead Balloon, when I say that I'm Creampuff.

You base these "facts" on . .a) time spent on PPRUNE therefore must be a timewasting public servant, therefore CASA, therefore Creampuff. .b) time calculated between posts, therefore Creampuff is Lead Balloon. .c) Admission of identity on an anonymous forum, therefore Lead Balloon is Creampuff. .d) Lead Balloon agrees with Creampuff, therefore Lead Balloon is Creampuff.

One established fact is that its not just public servants who spend time on the net instead of doing their job!

And its not just Creampuff with a medical condition.

I was actually talking about a different "Bob", Bob. And that "Bob" is me, Lead Balloon. Creampuff would never admit to that!
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Old 23rd Jan 2002, 16:06
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Amazig. No posts out of Canberra Public Service office hours!
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Old 23rd Jan 2002, 23:56
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Talking

You missed the one at 11.03 in Another **** Whinge Mk2 Sherlock.
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Old 24th Jan 2002, 03:04
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Exclamation

WOOMERA - doesn't the ip address only take you as far as the ISP or proxy server. From there as I understood it you have to enlist the support of the access provider. In addition would it not be impossible to identify someone using public access terminals (internet cafe/libraries etc.)
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