CASA and the Umpire's decision.
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CASA and the Umpire's decision.
“CASA will do all it can to ensure that a person whose licence, certificate or authority is suspended or cancelled has ready access to full external merits review in the AAT. Once before the AAT, CASA will conduct itself as a model litigant"
CASA, in a document entitled: "A new approach to enforcement". March, 1989.
On 16 July 2004 CASA issued a "Show Cause Notice" against an operator in West Australia "why should their AOC be renewed" - their AOC was due for renewal on 31 July 2004 - that did not give the operator the normally accepted 28 days to respond.
CASA extended that AOC on three occasions commencing 31 July 2004, two months at a time, until 31 January 2005, claiming CASA was giving reasonable time for the show cause process.
14 Jan 2005 CASA cancelled the AOC based on the allegations in the original July 2004 show cause notice.
The operator went to the AAT.
11 Feb 2005 the AAT stayed the CASA decision and extended the operator's AOC until the AAT hearing was finalised. CASA applied to the Federal Court arguing the AAT did not have the power to stay the "cancellation" decision and "to extend" the AOC.
Who in CASA authorised that application? CASA engaged two external Senior Counsels. That made CASA the applicant; the AAT the first respondent, and the operator the second respondent at that hearing.
27 July 2005 the Federal Court, Justice Siopis, dismissed CASA's application stating the AAT did have those powers and directing CASA to pay the costs of both respondents, the AAT and the operator.
CASA's application confirms the long-standing belief by industry that CASA are not prepared to accept the umpire's decision - CASA want to be able to suspend and cancel without any review rights for the affected party.
CASA obviously has contempt for the Australian legal system!
CASA, in a document entitled: "A new approach to enforcement". March, 1989.
On 16 July 2004 CASA issued a "Show Cause Notice" against an operator in West Australia "why should their AOC be renewed" - their AOC was due for renewal on 31 July 2004 - that did not give the operator the normally accepted 28 days to respond.
CASA extended that AOC on three occasions commencing 31 July 2004, two months at a time, until 31 January 2005, claiming CASA was giving reasonable time for the show cause process.
14 Jan 2005 CASA cancelled the AOC based on the allegations in the original July 2004 show cause notice.
The operator went to the AAT.
11 Feb 2005 the AAT stayed the CASA decision and extended the operator's AOC until the AAT hearing was finalised. CASA applied to the Federal Court arguing the AAT did not have the power to stay the "cancellation" decision and "to extend" the AOC.
Who in CASA authorised that application? CASA engaged two external Senior Counsels. That made CASA the applicant; the AAT the first respondent, and the operator the second respondent at that hearing.
27 July 2005 the Federal Court, Justice Siopis, dismissed CASA's application stating the AAT did have those powers and directing CASA to pay the costs of both respondents, the AAT and the operator.
CASA's application confirms the long-standing belief by industry that CASA are not prepared to accept the umpire's decision - CASA want to be able to suspend and cancel without any review rights for the affected party.
CASA obviously has contempt for the Australian legal system!
The Federal Court's judgment is here: http://www.austlii.edu.au/au/cases/c...2005/1023.html
This decision is a fundamentally important one, for licence and certificate holders (especially AOC holders), the AAT and CASA.
The AAT, through its power to 'stay' decisions, has become a quasi AOC issuer. While it is true (as was pointed out in the judgment) that the AAT always had the power to substitute its own decision for that of the maker of the decision under review, the AAT was rarely (on my recollection, never) imprudent enough to substitute, for a decision by a CASA delegate not to issue an AOC, its own decision actually to issue an AOC. In the event of an accident, the regulatory responsibility would in effect be borne by the AAT, not CASA.
There is a subtle but important distinction that needs to be understood here, and one which might more easily be understood by example.
In the Aquatic Air matter, for example, the suspended AOC still had time to run, and the suspension decision was 'stayed' by consent of the operator and CASA. Thus, when the operator subsequently killed a plane load of fare paying passengers, the AAT was in effect able to say that the operator had been authorised to operate under and AOC that had been issued by CASA, and which remained in force as a consequence of two decisions: first, the decision by CASA as to the duration of the AOC when it was first issued; second, the decision by the AAT to stay the suspension decision, to which decision CASA had consented.
Contrast that situation with the present situation in which the AOC has expired through the effluxion of time, and the CASA delegate's view was that the operator did not satisfy the legal requirements for the issue of another AOC.
The AAT has now grabbed the tiger by the tail. In effect, the operator is authorised to operate for however long it takes for the AAT to have a hearing and make a decision on the merits. The operator will be in absolutely no hurry for that to occur. In the interim, CASA's position will remain that the operator should not be in the air.
And what if the AAT decides, as it is undoubtedly able to decide, that the operator should have an AOC? The AAT can't force a CASA delegate form the view that an operator meets the requirements for the issue of an AOC. After all, if a CASA delegate had formed the view that the operator met the requirements for the issue of an AOC, the delegate would have issued the AOC. The AAT's only option would be to issue the AOC itself – a very, very courageous step to take.
All round, a very beneficial judgment for operators and CASA. Operators have an avenue through which to continue operating, notwithstanding the expiry of their AOC, in circumstances in which CASA has formed the view that a new AOC should not be issued. The regulatory responsibility for the continued operation will fall squarely on the AAT, not CASA.
This decision is a fundamentally important one, for licence and certificate holders (especially AOC holders), the AAT and CASA.
The AAT, through its power to 'stay' decisions, has become a quasi AOC issuer. While it is true (as was pointed out in the judgment) that the AAT always had the power to substitute its own decision for that of the maker of the decision under review, the AAT was rarely (on my recollection, never) imprudent enough to substitute, for a decision by a CASA delegate not to issue an AOC, its own decision actually to issue an AOC. In the event of an accident, the regulatory responsibility would in effect be borne by the AAT, not CASA.
There is a subtle but important distinction that needs to be understood here, and one which might more easily be understood by example.
In the Aquatic Air matter, for example, the suspended AOC still had time to run, and the suspension decision was 'stayed' by consent of the operator and CASA. Thus, when the operator subsequently killed a plane load of fare paying passengers, the AAT was in effect able to say that the operator had been authorised to operate under and AOC that had been issued by CASA, and which remained in force as a consequence of two decisions: first, the decision by CASA as to the duration of the AOC when it was first issued; second, the decision by the AAT to stay the suspension decision, to which decision CASA had consented.
Contrast that situation with the present situation in which the AOC has expired through the effluxion of time, and the CASA delegate's view was that the operator did not satisfy the legal requirements for the issue of another AOC.
The AAT has now grabbed the tiger by the tail. In effect, the operator is authorised to operate for however long it takes for the AAT to have a hearing and make a decision on the merits. The operator will be in absolutely no hurry for that to occur. In the interim, CASA's position will remain that the operator should not be in the air.
And what if the AAT decides, as it is undoubtedly able to decide, that the operator should have an AOC? The AAT can't force a CASA delegate form the view that an operator meets the requirements for the issue of an AOC. After all, if a CASA delegate had formed the view that the operator met the requirements for the issue of an AOC, the delegate would have issued the AOC. The AAT's only option would be to issue the AOC itself – a very, very courageous step to take.
All round, a very beneficial judgment for operators and CASA. Operators have an avenue through which to continue operating, notwithstanding the expiry of their AOC, in circumstances in which CASA has formed the view that a new AOC should not be issued. The regulatory responsibility for the continued operation will fall squarely on the AAT, not CASA.
