WA Air Operator sues CASA and Officials
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WA Air Operator sues CASA and Officials
WA air operator sues CASA and officials
Reported today in AviationAdvertiser
Paul Phelan , 3 May 2010 – 10:20 am
Western Australian charter and flying school operator Polar Aviation and its managing director Clark Butson have lodged a Statement of Claim in the Federal Court in Melbourne seeking damages from the Civil Aviation Safety Authority (CASA) and six of its officials and former officials.
In a Statement filed on April 30, the applicants detail a range of alleged breaches of CASA’s and its officials’ obligations under the Commonwealth Authorities and Companies Act 1997 (the CAC Act) and other legislation.
They say the adverse actions began after a heated technical argument between Butson and a CASA official during a routine audit, over operational issues including CASA requirements as to asymmetric flying training procedures. They claim that the subsequent alleged harassment took many forms including officials’ failure to exercise their powers and functions in accordance with the provisions if the Civil Aviation Act, the Civil Aviation Regulations and Orders, the Civil Aviation Safety Regulations and the CAC Act.
Officials named as respondents are Terence Farquharson, now Deputy Director of Aviation Safety, Garry Presneill, formerly a Flying Operations Inspector at the CASA West Office; Robert Collins (now retired), who was then CASA Group General manager of General Aviation Operations; Jim Marcolin, now with CASA Operations in Sydney; Peter John, CASA operations – Eastern; and Alan Cook, former Operations Manager of CASA’s General Aviation Group, who has since left CASA.
Polar Aviation complains that it was flooded with “requests for corrective action” and “show cause notices” from various of the named officials, to all of which it responded, although many of the notices reiterated matters from previous notices that had already been acquitted.
The issue was escalated by a seventh notice on January 14 which cancelled the company’s flying school Air Operator Certificate (AOC) and Butson’s Chief Flying Instructor approval, and revoked his Chief Pilot and approved testing officer (ATO) approvals.
The Statement says: “The Cancellation of Butson’s Chief Pilot Approval and the revocation of Butson’s Chief Flying Instructor Approval immediately prevented Polar Aviation from carrying out any commercial flying operations; immediately prevented the Polar Aviation Flying School from operating; caused the immediate shut down of Polar Aviation’s business; and constituted a breach of the duties set out [elsewhere in the complaint.]
The Statement claims the actions of the respondents:
A similar statement has been filed in the Federal Court in Perth by WA pilot Gerald Repacholi and his company Repacholi Aviation, involving some of the Polar Air respondents. At least three other aggrieved aviation businesses are understood to be preparing similar claims.
Reported today in AviationAdvertiser
Paul Phelan , 3 May 2010 – 10:20 am
Western Australian charter and flying school operator Polar Aviation and its managing director Clark Butson have lodged a Statement of Claim in the Federal Court in Melbourne seeking damages from the Civil Aviation Safety Authority (CASA) and six of its officials and former officials.
In a Statement filed on April 30, the applicants detail a range of alleged breaches of CASA’s and its officials’ obligations under the Commonwealth Authorities and Companies Act 1997 (the CAC Act) and other legislation.
They say the adverse actions began after a heated technical argument between Butson and a CASA official during a routine audit, over operational issues including CASA requirements as to asymmetric flying training procedures. They claim that the subsequent alleged harassment took many forms including officials’ failure to exercise their powers and functions in accordance with the provisions if the Civil Aviation Act, the Civil Aviation Regulations and Orders, the Civil Aviation Safety Regulations and the CAC Act.
Officials named as respondents are Terence Farquharson, now Deputy Director of Aviation Safety, Garry Presneill, formerly a Flying Operations Inspector at the CASA West Office; Robert Collins (now retired), who was then CASA Group General manager of General Aviation Operations; Jim Marcolin, now with CASA Operations in Sydney; Peter John, CASA operations – Eastern; and Alan Cook, former Operations Manager of CASA’s General Aviation Group, who has since left CASA.
Polar Aviation complains that it was flooded with “requests for corrective action” and “show cause notices” from various of the named officials, to all of which it responded, although many of the notices reiterated matters from previous notices that had already been acquitted.
The issue was escalated by a seventh notice on January 14 which cancelled the company’s flying school Air Operator Certificate (AOC) and Butson’s Chief Flying Instructor approval, and revoked his Chief Pilot and approved testing officer (ATO) approvals.
The Statement says: “The Cancellation of Butson’s Chief Pilot Approval and the revocation of Butson’s Chief Flying Instructor Approval immediately prevented Polar Aviation from carrying out any commercial flying operations; immediately prevented the Polar Aviation Flying School from operating; caused the immediate shut down of Polar Aviation’s business; and constituted a breach of the duties set out [elsewhere in the complaint.]
The Statement claims the actions of the respondents:
- “constitute a persistent attack on Polar Aviation’s capacity to carry out its flying operations;
- evidence a discriminatory approach to Polar Aviation and Butson;
- evidence a willingness and intent by the respondents to act outside their authority;
- evidence a willingness and intent by the respondents to act contrary to the provisions of the Act, and their obligations and duties under the provisions of the CAC Act;
- evidence an intent by the respondents, acting outside their authority, to injure the applicants or, alternatively, evidence a reckless indifference as to whether such acts outside their authority would or would not injure the applicants.”
A similar statement has been filed in the Federal Court in Perth by WA pilot Gerald Repacholi and his company Repacholi Aviation, involving some of the Polar Air respondents. At least three other aggrieved aviation businesses are understood to be preparing similar claims.
...a heated technical argument between Butson and a CASA official during a routine audit, over operational issues including CASA requirements as to asymmetric flying training procedures...
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It makes you wonder why the Operator didn't just simply comply with what the Regulator was asking for instead of arguing the toss..?
This particular FOI was trying to impose on a flying instructor (who had about 14,000 hours of instructional time) a “requirement” that didn’t exist. If you own a fleet of light twins you are obviously aware that sudden shut-downs, particularly at takeoff power where they are usually conducted, considerably increase wear and tear through thermal shock, potential counterbalance damage, torsional transmission stress on geared engines, and other effects, and should only be done where it is necessary in training, and then as gently as possible.
The problem was quite a simple one. Polar at the time operated only two twin types - Cessna 310R and three Barons. It was common at the time to have pilots who had only flown Duchess or similar to join the company. If they had no Baron endorsement or 310 endorsement it was provided by the company, and of course that would require asymmetric training because it was an initial issue.
If however a line pilot in the company had already been endorsed on a Baron and was required to fly the 310, he would also be provided with an endorsement, however It is not necessary to do asymmetric training, if the pilot gives all the correct responses to the asymmetric training on the ground.(as in the CAAP). Barons and 310s have the same engines and about the same MTOW and fly at similar speeds, also have similar asymmetric behavior. It is not a requirement to conduct the asymmetrics in the air, however if the owner felt the pilot lacked the knowledge in asymmetrics, that part of the airborne training would be included in the endorsement.
It should also be noted that due to CASA pressure, Mr Butson agreed to do asymmetric training on all endorsements. This was still not good enough for the regulator. When the court decided on who was right or wrong about that, Polar Aviation was vindicated.
Last edited by Paul Phelan; 4th May 2010 at 09:39. Reason: typo
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Paul, as you appear to have some knowledge on this matter, is this another case of CASA FOIs' going beyond their statutory power and imposing their opinion on what should be included?
I have hear of other cases where this has applied. If it is the case I hope that a settlement is not on the cards because it is high time that a court took CASA to task over the practice. They need to be taught a lesson that their powers are limited by statute and that anything in excess of them is illegal and should be prosecuted.
I have hear of other cases where this has applied. If it is the case I hope that a settlement is not on the cards because it is high time that a court took CASA to task over the practice. They need to be taught a lesson that their powers are limited by statute and that anything in excess of them is illegal and should be prosecuted.
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Scroll down this page and download the Senate Commission Submission
Aircraft for Sale, Plane Sales, Planes for Sale – Aviation Advertiser ? – Online Magazine There’s Still a Mouse in the House at CASA
Good onya Clark
Aircraft for Sale, Plane Sales, Planes for Sale – Aviation Advertiser ? – Online Magazine There’s Still a Mouse in the House at CASA
Good onya Clark
A classic example of CASA not being consistent is "Aerial Baiting"
Before 2003 an operator had to have an AOC and aerial baiting on the AOC as an aerial work function before the operator could drop baits from either an aeroplane or a helicopter.
Then in 2003 by an Aviation Ruling, it was deemed to be a private operation. This meant that one could drop wheat laced with chemical as baits for mice (aerial baiting) on a private licence, but one needed an AOC and an ag rating to drop the same wheat without the chemical in it if seeding.
When Part 137 became law, it required an aeroplane operator to have an AOC and the pilot to have an agricultural rating to drop baits.
But a helicopter operator still did not need to have an AOC to do aerial baiting.
So one could have the situation of an operator who operated both aeroplanes and helicopters dropping the same baits, but requiring an AOC and aerial application function on the AOC for the aeroplane operation but no requirements on the helicopter operation. Both a helicopter and an aeroplane could have been dropping baits in the same area on the same day but with completely different requirements.
So what to do. That is easy, just rescind the aviation ruling. Remember this was legal advice in the first place that decreed aerial baiting as a private operation.
Now the legal advice is that aerial baiting requires an AOC.
Before 2003 an operator had to have an AOC and aerial baiting on the AOC as an aerial work function before the operator could drop baits from either an aeroplane or a helicopter.
Then in 2003 by an Aviation Ruling, it was deemed to be a private operation. This meant that one could drop wheat laced with chemical as baits for mice (aerial baiting) on a private licence, but one needed an AOC and an ag rating to drop the same wheat without the chemical in it if seeding.
When Part 137 became law, it required an aeroplane operator to have an AOC and the pilot to have an agricultural rating to drop baits.
But a helicopter operator still did not need to have an AOC to do aerial baiting.
So one could have the situation of an operator who operated both aeroplanes and helicopters dropping the same baits, but requiring an AOC and aerial application function on the AOC for the aeroplane operation but no requirements on the helicopter operation. Both a helicopter and an aeroplane could have been dropping baits in the same area on the same day but with completely different requirements.
So what to do. That is easy, just rescind the aviation ruling. Remember this was legal advice in the first place that decreed aerial baiting as a private operation.
Now the legal advice is that aerial baiting requires an AOC.
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Clinton,
If the AOC / Approval holder is believed to be breaking the law, why not take them to court ?, present the evidence and let the judge decide ?.
Many times in the past this tactic has been used as a perceived punishment system, one that mostly bypasses any external review, or without the need to "prove" their case.
We still live in a society where guilt has to be proven, then the punishment follows.
It is the opinion of many here, this right, and yes it is a right, can be bypassed by an "administrative process", is that natural justice ?.
A good read:
IF CASA SENDS YOU
A 'SHOW CAUSE' NOTICE
IF CASA SENDS YOU A 'SHOW CAUSE' NOTICE ...
CASA frequently sends notices to people requiring them to show cause why their license should not be cancelled or suspended. These notices are crude exercises in coercion which effectively say "lick my boots or else".
Don't imagine that you will never receive one of these notices. Many people have said to me that they "operate by the book" or "have a very good relationship with CASA" - and have later come seeking help. If you have an "excellent relationship with CASA" that really means you are in favour with your present CASA inspector. When there is a change of staff you are just as likely as anyone else to get a 'show cause' notice.
WE STILL HAVE RIGHTS - EXERCISE YOURS! DON'T KOWTOW
There is no need to kowtow to CASA when you are issued with a 'show cause' notice. We have rights and you can exercise yours. Read on ...
DECIDE AHEAD OF TIME WHETHER YOU'LL JOIN IN THE GAME IF YOU ARE INVITED
I recommend to members of AIR SAFETY AUSTRALIA that you give careful thought ahead of time to what you will do if you get one of these notices. I have seen a number of cases where the person who received a 'show cause' did himself real harm by unwise handling of it at the very outset.
I also recommend that each member of AIR SAFETY AUSTRALIA give careful consideration to responding as follows:
"I have not been convicted of any of the offences alleged in the 'show cause' notice, and I deny each of them. That is the cause I show. I call on CASA to prosecute me in respect of those alleged offences, and not to [cancel my license] unless I am convicted."
The 'show cause' procedure is fundamentally unjust, because it involves CASA acting as both prosecutor and judge. AIR SAFETY AUSTRALIA's members may do themselves a service by staying well away from it.
A decision to stay away from the "show cause" procedure carries risks of its own, and anyone who does so should seek legal advice at the outset. I also recommend that anyone thinking of following this course should contact me because there are some additional considerations which are not appropriate for inclusion in this article.
Civil Aviation Regulation 269 - the legal basis of this coercion
(1) Subject to this regulation, CASA may, by notice in writing served on the holder of a license or certificate or an authority, vary, suspend, or cancel the license, certificate or authority where CASA is satisfied that one or more of the following grounds exists, namely:
(a) that the holder of the license, certificate or authority has contravened a provision of the Act or these regulations ...
(3) Before taking action under this regulation ... CASA shall ...
(b) allow the holder of the license, certificate or authority to show cause ... why the license ... should not be cancelled, varied or suspended."
This provision is an outrage. It ousts the jurisdiction of the Courts. If CASA is satisfied that someone has contravened the law, the proper course of action is for CASA to see that the person is prosecuted in a Court and, if found guilty, punished by the Court. But CAR 269 allows CASA to act as prosecutor, jury, and judge.
We as pilots should never have allowed Regulation 269 to become law. But having done so, we should have it repealed. And while it remains on foot, we should not allow ourselves as individuals to be trapped by it.
SUPPOSITIONS AND HYPOTHESES - CASA CALLS THEM 'FACTS AND CIRCUMSTANCES'
Usually the 'show cause' notice is many pages long, and it details a long list of alleged offences called 'facts and circumstances' which may vary from trivial to serious to far-fetched. It's important to realise that just because CASA alleges that you breached the law does not mean that you did. CASA may have simply made a mistake, or may be acting on false information, or you may have done precisely what CASA alleges but it may not be illegal.
Just because CASA sets out a long list of facts and circumstances that does not mean there is a single fact in the list. A better description would be 'suppositions and hypotheses'. If you are charged, a Court won't assume that what CASA claims are 'Facts and Circumstances' really are that - CASA will have to prove each and every one of them. But if you submit to the 'show cause' process you submit to trial not by a Court but by CASA. And CASA itself will, of course, assume that what it calls facts really are facts.
As an example, let's say you are accused of low flying. The story may be completely false - someone may have fabricated it and sent a poison pen letter to CASA. Or there may indeed have been low flying, but someone else did it. Or you may have done the low flying but it was legal (for example, under stress of weather). Or you may have done the low flying, and it was illegal, but the offence was trivial and does not warrant the action CASA proposes to take.
I think it is unwise to respond to a 'show cause' letter with any specifics. No matter how wrong, and how hurtful, an alleged 'fact and circumstance' may be, don't respond to it. The problem is that by doing so you simply give CASA the opportunity to allege that you did something else. If, on the other hand, you keep your cool and CASA eventually takes you to court you can then expose CASA's false accusation for what it is, and thereby damage their credibility in respect of other allegations.
BY PLAYING THE 'SHOW CAUSE' GAME -
YOU THROW AWAY PRECIOUS HARD-WON RIGHTS
It's a fundamental part of Australian justice that the accuser must make his case in full before the defendant has to respond. In the absence of that provision, the accuser could always wear down the defendant by meeting every defence with a slightly or greatly different accusation.
By agreeing to participate in CASA's 'show cause' procedure, you forfeit that essential right. You also forfeit another essential right - the right to absolute acquittal. This means that once you are acquitted of a charge, you can never again be charged with the same offence.
You forfeit yet another essential right. In a Court, the accuser has to prove what he says. In a 'show cause' procedure, you have to disprove what the accuser says. There is a huge difference between the two. And you throw away one more essential right - the right to face your accuser and cross-examine him or her. If CASA prosecutes you, their officer can't stand up and say that he was told such-and-such by an un-named person. The un-named person has to stand up, state his or her name, and make the accusations out loud to the Court. You then have a right to cross-examine that person to show just how good his or her evidence is, and to reveal what his or her motive might be.
In a 'show cause' process your accuser has the luxury of not having to face you and not having to submit to cross-examination. Your accuser has an even greater luxury - he does not have to tell the truth! If your accuser lies in Court, he or she commits the very serious offence of perjury, and (probably) perverting the course of justice. If caught out, he or she faces a stretch in jail. It's neither perjury nor perverting the course of justice if a person lies to a CASA officer conducting a 'show cause' procedure. Your accuser need not fear going to jail if he or she lies during the 'show cause' procedure.
If you participate in a 'show cause' procedure, and CASA subsequently punishes you by (say) cancelling your license, you can still be hauled before the court later on and prosecuted. In all probability you will have damaged yourself by what you said in the 'show cause' procedure, and worse still you will have revealed your defence strategy. You cannot claim double jeopardy because, you see, if CASA suspends your license that's not a punishment. It's only a punishment if a Court does it!
IF YOU NEED TO APPEAL - AAT OR ELSEWHERE?
What if you do say
"I have not been convicted of any of the illegal acts alleged in the 'show cause' notice. That is the cause I show..."
and CASA goes right ahead and cancels your license anyway? A course of action you should consider is to skip the AAT (Administrative Appeals Tribunal) and go straight to the Federal Court and take action against CASA under the Administrative Decisions (Judicial Review) Act. Needless to say legal advice is essential at this stage.
But you should be clear about one thing - the chance that you will persuade the AAT to give you your license back is very low. If ever any human activity has had a consistent record of failure it is the activity of going to the AAT to get your license back. The AAT works very well for other things, such as bringing over-zealous tax gatherers into line. Where it is just money involved, the AAT is very effective (I know, because I used it myself years ago to recover some thousands of dollars from a government department - I represented myself, the total cost was zero, and I recovered every cent that had been taken from me). But where an aviation license is involved, the AAT's record is dreadful.
The basic difference between going to the Federal Court and the AAT is that the Federal Court will only look at the method by which CASA decided to cancel your license, whereas the AAT will review the decision on its merits. While the latter may sound attractive, it's not. The reason for that is because in order to decide in your favour, the AAT has to say to itself "we know better than CASA does" and accept the mental responsibility for an accident you may have in the future. By contrast the Judge of the Federal Court does not have to second-guess CASA on the merits of your case. He or she simply has to decide whether the proper procedures were followed. If your license is cancelled on the basis of allegations which have never been put to the test in a court, you are off to a pretty good start!
At the beginning of this article I said that it's probably wise to decide what you are going to do with a 'show cause' ahead of time. The reason I say that is that in the vast majority of cases brought to me, the person had already written letters to CASA or spoken to CASA's officers. If you are going to decline to join in the 'show cause' procedure, it's essential that you do so at the very beginning. It's no good joining in the game, and then leaving the field when you don't like the way the ball is bouncing.
Of course it takes big balls to refuse to participate, because you are in effect inviting CASA to prosecute you. There are, however, a couple of things to bear in mind here. Firstly, the very reason CASA has decided to use the 'show cause' procedure against you may well be that CASA recognises that the evidence is shaky, or even that the DPP has declined to prosecute.
Secondly, if CASA does prosecute and you are convicted, the punishment a Court imposes may well be less severe than that which CASA will impose. A court has the power to effectively cancel or suspend your license by imposing an "exclusion period" (under Section 30A of the Civil Aviation Act). If you are prosecuted and convicted, it might be wise to ask your barrister to draw the Court's attention to that power, and suggest to the Judge that he invite submissions on an exclusion period from CASA's barrister, before sentencing you. Why? The Court may be unaware of that power, and may therefore sentence you to a fine alone. A fine alone is likely to be heavier than a fine plus an exclusion period. And if the court fines you, CASA can still suspend your license under the 'show cause' procedure. If you have drawn the attention of the court to its power, you can then use that as your response to the next 'show cause' notice.
"I have been convicted of the offence you allege. The Court had power to impose an exclusion period when it sentenced me. (The Judge even invited pre-sentence submissions from CASA's counsel about an exclusion period.) It would therefore be unfair for CASA to impose a (further) suspension period."
This brings me back to a fundamental point. If CASA wants to talk with you, it's often wise to refuse. And by that I mean refuse. Don't answer any question however trivial or however obvious the answer. If they ask if you hold pilot license number 1234, just say "I do not wish to talk with you" - no more than that.
Be scrupulously careful to tell the truth at all times. If CASA asks you who was flying a particular aircraft on a particular occasion, don't say that you do not know. Simply say "I do not wish to talk with you". No matter how innocent you are, it's most unlikely you'll do yourself any good, ever, by co-operating. CASA's officers may see co-operation as weakness, and respond accordingly. Likewise, if CASA demands any paperwork, say that you wish to consult your lawyer before complying.
BEWARE THE LOG BOOK TRAWL
One of CASA's favourite tricks is the "Log Book Trawl". CASA demands your personal logbook in order to compare it with aircraft logbooks looking for minor discrepancies. It's wise to seek legal advice before handing any documents over, even if the Act or Regulations appear to require you to do so. If, for example, your logbook contained incriminating information you may be protected from having to hand it over by the general principle against self-incrimination. And the vast majority of logbooks DO reveal minor mistakes which are, under Australian rules, crimes.
If you refuse to speak to CASA or to hand anything over until you have received legal advice, it is unlikely that you will come to any harm. When you have legal advice, it will either be that you talk to CASA or that you do not. If your legal advice is that you should speak to CASA, and you then do so, you cannot be criticised. If your legal advice is that you should not speak to CASA you cannot be criticised - and you have probably done yourself a huge favour. If any lawyer ever advised me to talk to CASA or to hand documents over, I'd get a second opinion from a better lawyer!
DON'T HAND YOUR LICENCE OVER TO CASA BEFORE GETTING LEGAL ADVICE
I particularly advise against handing your pilot license over to CASA before getting legal advice. If CASA demands your license, say that you wish to consult your lawyer before complying. Then engage a lawyer - not necessarily right then, but without undue delay. That lawyer can then advise you whether or not you are legally obliged to comply. The problem with handing your license over is that one of CASA's favourite tricks is to refuse to return it - and then you cannot fly because you do not have your license in your personal possession. Gotcha!
WHAT CAN WE DO?
In my opinion CASA's 'show cause' process is fundamentally wrong, and no amount of tinkering with it can make it right. Australia has an excellent court system, and it is that system which should deal with the things which CASA now deals with under the 'show cause' process.
AOPA IS MISTAKEN TO ENDORSE THE 'SHOW CAUSE' PROCESS
I think AOPA is seriously mistaken to lend an air of legitimacy to the 'show cause' process by participating in it. Even if that participation improves outcomes in some individual cases, it seems to me to be mistaken to devote money and other resources to participating in the 'show cause' process rather than devoting that money and those resources to removing the process from the statute books. I fear that AOPA is reverting to the old method of dealing with the bureaucrats and their interpretation of the laws, rather than dealing with the politicians so that we change the laws under which the bureaucrats operate.
AOPA's assertion that "the rules of evidence will be followed" is misleading. The main thing which makes evidence generally truthful is the fact that witnesses know they can be jailed for giving false evidence to a Court. But you can't be jailed for giving false information to a "show cause" procedure. And, come to think of it, AOPA has asserted that "the rules of evidence will be followed" - but what has CASA said?
The basic problem with aviation in Australia is that the underlying law is bad. AOPA's money and resources should be devoted, first and foremost, to changing the underlying law. Sentence by sentence, clause by clause, measure by measure we can achieve that if we work at it relentlessly. CASA's bureaucrats are law-abiding people, and can be relied upon to comply with the law. If we get the bad law changed the problem will be solved.
I believe that the result of AOPA's decision to participate in the 'show cause' process is all too likely to be to advance the interests of the cronies of the committee members at the expense of the rank and file.
WHAT IS CASA'S ALTERNATIVE?
CASA's alternative to the 'show cause' procedure is for CASA to use the normal Court processes. That is, to put their evidence before a Court and allow the Court to decide whether or not you are guilty, and if guilty to decide the appropriate penalty. That, after all, is what the Police do when they believe a driver has offended.
The Court system is often slow, but in urgent cases an injunction can be obtained on a moment's notice. That is, CASA could go to the Court saying that it has evidence of serious wrongdoing and the Court could then issue an injunction which temporarily prevented you from (say) flying. An injunction can be obtained in far less time than is required by the 'show cause' process. The benefit for the accused person is that you have all the safeguards of the Court system. If, for example, your accuser is lying he is very likely to baulk when CASA asks him to swear an affidavit - because doing so would make him liable to charges of perjury and perverting the course of justice. Without that affidavit, CASA won't get the injunction. But under the 'Show Cause' process, an accuser can lie with impunity because his identity is concealed by CASA, and even if his identity becomes known he faces no risk of jail for lying in the course of a "show cause" procedure.
Our forefathers struggled for many generations to achieve a legal system which catches and punishes the guilty but protects the innocent. It is our right to have that system apply to all facets of our lives, aviation included. As aviators we were collectively silly to throw away that right by failing to object when CASA put the 'show cause' procedure on the statute books. But we can reclaim the right by getting the 'show cause' procedure off the statute books again.
CASA's OFFICERS ARE NOT QUALIFIED TO DECIDE WHO HAS BROKEN THE LAW
CASA often issues 'show cause' notices stating that a pilot has breached Section 20A of the Civil Aviation Act. This is simply preposterous. No-one knows what is a breach of that section, because the High Court has never decided on it. I wrote it myself, and AOPA subsequently pushed it into law. When I wrote it, one Sunday afternoon in a Canberra motel room, I wondered what the Courts would eventually decide it meant. It is up to the Courts, not CASA, to determine what that section means. But CASA officers have decided for themselves, and are freely handing out 'show cause' notices telling people they have breached this section. That is an outrage. If CASA's officers are satisfied that someone has breached it, you'd think they would have obtained a good number of convictions but (so far as I am aware) they have not obtained even one. Strange, isn't it?
THIS ALL SEEMS PRETTY SENSIBLE, BUT WHAT ABOUT THE COST?
What I suggest may indeed prove expensive. That is, of course, one of the main methods of intimidation that CASA uses.
But there is a solution. AIR SAFETY AUSTRALIA's members are generous, and they will stand behind you if you are threatened. If you are hit with a "show cause" notice, and yours is a good test case, I will personally donate money to help you and will urge other AIR SAFETY AUSTRALIA members to do likewise. I stress the requirement that yours be a good test case, but if you e-mail me on [email protected] or fax me on 02 9225 9127 I will promptly tell you whether or not it is.
AUTHOR - BOX
The author: Boyd Munro is a businessman and a pilot. He holds a British ATPL, an FAA ATPL fixed and rotary, and an Australian CPL fixed and rotary. He has been flying since 1966. Boyd has never flown for hire or reward, and obtained professional licenses solely to demonstrate that he meets professional standards. He is a previous President of AOPA Australia. He personally wrote the present section 20A of the Civil Aviation Act and led AOPA's fight to get it through Parliament until in 1995 it became law. He has flown the Atlantic Ocean 42 times in Piper Navajo aircraft since 1971. He won the multi-engine division of the 1981 Paris-New York trans-Atlantic race conducted by the Aero Club de France. He won the 1987 Singapore-Christchurch race conducted by the City of Christchurch.
I suppose I should no longer be surprised about how the same set of circumstances can be perceived and reported in a diametrically opposed way to my reading.
Many times in the past this tactic has been used as a perceived punishment system, one that mostly bypasses any external review, or without the need to "prove" their case.
We still live in a society where guilt has to be proven, then the punishment follows.
It is the opinion of many here, this right, and yes it is a right, can be bypassed by an "administrative process", is that natural justice ?.
A good read:
IF CASA SENDS YOU
A 'SHOW CAUSE' NOTICE
IF CASA SENDS YOU A 'SHOW CAUSE' NOTICE ...
CASA frequently sends notices to people requiring them to show cause why their license should not be cancelled or suspended. These notices are crude exercises in coercion which effectively say "lick my boots or else".
Don't imagine that you will never receive one of these notices. Many people have said to me that they "operate by the book" or "have a very good relationship with CASA" - and have later come seeking help. If you have an "excellent relationship with CASA" that really means you are in favour with your present CASA inspector. When there is a change of staff you are just as likely as anyone else to get a 'show cause' notice.
WE STILL HAVE RIGHTS - EXERCISE YOURS! DON'T KOWTOW
There is no need to kowtow to CASA when you are issued with a 'show cause' notice. We have rights and you can exercise yours. Read on ...
DECIDE AHEAD OF TIME WHETHER YOU'LL JOIN IN THE GAME IF YOU ARE INVITED
I recommend to members of AIR SAFETY AUSTRALIA that you give careful thought ahead of time to what you will do if you get one of these notices. I have seen a number of cases where the person who received a 'show cause' did himself real harm by unwise handling of it at the very outset.
I also recommend that each member of AIR SAFETY AUSTRALIA give careful consideration to responding as follows:
"I have not been convicted of any of the offences alleged in the 'show cause' notice, and I deny each of them. That is the cause I show. I call on CASA to prosecute me in respect of those alleged offences, and not to [cancel my license] unless I am convicted."
The 'show cause' procedure is fundamentally unjust, because it involves CASA acting as both prosecutor and judge. AIR SAFETY AUSTRALIA's members may do themselves a service by staying well away from it.
A decision to stay away from the "show cause" procedure carries risks of its own, and anyone who does so should seek legal advice at the outset. I also recommend that anyone thinking of following this course should contact me because there are some additional considerations which are not appropriate for inclusion in this article.
Civil Aviation Regulation 269 - the legal basis of this coercion
(1) Subject to this regulation, CASA may, by notice in writing served on the holder of a license or certificate or an authority, vary, suspend, or cancel the license, certificate or authority where CASA is satisfied that one or more of the following grounds exists, namely:
(a) that the holder of the license, certificate or authority has contravened a provision of the Act or these regulations ...
(3) Before taking action under this regulation ... CASA shall ...
(b) allow the holder of the license, certificate or authority to show cause ... why the license ... should not be cancelled, varied or suspended."
This provision is an outrage. It ousts the jurisdiction of the Courts. If CASA is satisfied that someone has contravened the law, the proper course of action is for CASA to see that the person is prosecuted in a Court and, if found guilty, punished by the Court. But CAR 269 allows CASA to act as prosecutor, jury, and judge.
We as pilots should never have allowed Regulation 269 to become law. But having done so, we should have it repealed. And while it remains on foot, we should not allow ourselves as individuals to be trapped by it.
SUPPOSITIONS AND HYPOTHESES - CASA CALLS THEM 'FACTS AND CIRCUMSTANCES'
Usually the 'show cause' notice is many pages long, and it details a long list of alleged offences called 'facts and circumstances' which may vary from trivial to serious to far-fetched. It's important to realise that just because CASA alleges that you breached the law does not mean that you did. CASA may have simply made a mistake, or may be acting on false information, or you may have done precisely what CASA alleges but it may not be illegal.
Just because CASA sets out a long list of facts and circumstances that does not mean there is a single fact in the list. A better description would be 'suppositions and hypotheses'. If you are charged, a Court won't assume that what CASA claims are 'Facts and Circumstances' really are that - CASA will have to prove each and every one of them. But if you submit to the 'show cause' process you submit to trial not by a Court but by CASA. And CASA itself will, of course, assume that what it calls facts really are facts.
As an example, let's say you are accused of low flying. The story may be completely false - someone may have fabricated it and sent a poison pen letter to CASA. Or there may indeed have been low flying, but someone else did it. Or you may have done the low flying but it was legal (for example, under stress of weather). Or you may have done the low flying, and it was illegal, but the offence was trivial and does not warrant the action CASA proposes to take.
I think it is unwise to respond to a 'show cause' letter with any specifics. No matter how wrong, and how hurtful, an alleged 'fact and circumstance' may be, don't respond to it. The problem is that by doing so you simply give CASA the opportunity to allege that you did something else. If, on the other hand, you keep your cool and CASA eventually takes you to court you can then expose CASA's false accusation for what it is, and thereby damage their credibility in respect of other allegations.
BY PLAYING THE 'SHOW CAUSE' GAME -
YOU THROW AWAY PRECIOUS HARD-WON RIGHTS
It's a fundamental part of Australian justice that the accuser must make his case in full before the defendant has to respond. In the absence of that provision, the accuser could always wear down the defendant by meeting every defence with a slightly or greatly different accusation.
By agreeing to participate in CASA's 'show cause' procedure, you forfeit that essential right. You also forfeit another essential right - the right to absolute acquittal. This means that once you are acquitted of a charge, you can never again be charged with the same offence.
You forfeit yet another essential right. In a Court, the accuser has to prove what he says. In a 'show cause' procedure, you have to disprove what the accuser says. There is a huge difference between the two. And you throw away one more essential right - the right to face your accuser and cross-examine him or her. If CASA prosecutes you, their officer can't stand up and say that he was told such-and-such by an un-named person. The un-named person has to stand up, state his or her name, and make the accusations out loud to the Court. You then have a right to cross-examine that person to show just how good his or her evidence is, and to reveal what his or her motive might be.
In a 'show cause' process your accuser has the luxury of not having to face you and not having to submit to cross-examination. Your accuser has an even greater luxury - he does not have to tell the truth! If your accuser lies in Court, he or she commits the very serious offence of perjury, and (probably) perverting the course of justice. If caught out, he or she faces a stretch in jail. It's neither perjury nor perverting the course of justice if a person lies to a CASA officer conducting a 'show cause' procedure. Your accuser need not fear going to jail if he or she lies during the 'show cause' procedure.
If you participate in a 'show cause' procedure, and CASA subsequently punishes you by (say) cancelling your license, you can still be hauled before the court later on and prosecuted. In all probability you will have damaged yourself by what you said in the 'show cause' procedure, and worse still you will have revealed your defence strategy. You cannot claim double jeopardy because, you see, if CASA suspends your license that's not a punishment. It's only a punishment if a Court does it!
IF YOU NEED TO APPEAL - AAT OR ELSEWHERE?
What if you do say
"I have not been convicted of any of the illegal acts alleged in the 'show cause' notice. That is the cause I show..."
and CASA goes right ahead and cancels your license anyway? A course of action you should consider is to skip the AAT (Administrative Appeals Tribunal) and go straight to the Federal Court and take action against CASA under the Administrative Decisions (Judicial Review) Act. Needless to say legal advice is essential at this stage.
But you should be clear about one thing - the chance that you will persuade the AAT to give you your license back is very low. If ever any human activity has had a consistent record of failure it is the activity of going to the AAT to get your license back. The AAT works very well for other things, such as bringing over-zealous tax gatherers into line. Where it is just money involved, the AAT is very effective (I know, because I used it myself years ago to recover some thousands of dollars from a government department - I represented myself, the total cost was zero, and I recovered every cent that had been taken from me). But where an aviation license is involved, the AAT's record is dreadful.
The basic difference between going to the Federal Court and the AAT is that the Federal Court will only look at the method by which CASA decided to cancel your license, whereas the AAT will review the decision on its merits. While the latter may sound attractive, it's not. The reason for that is because in order to decide in your favour, the AAT has to say to itself "we know better than CASA does" and accept the mental responsibility for an accident you may have in the future. By contrast the Judge of the Federal Court does not have to second-guess CASA on the merits of your case. He or she simply has to decide whether the proper procedures were followed. If your license is cancelled on the basis of allegations which have never been put to the test in a court, you are off to a pretty good start!
At the beginning of this article I said that it's probably wise to decide what you are going to do with a 'show cause' ahead of time. The reason I say that is that in the vast majority of cases brought to me, the person had already written letters to CASA or spoken to CASA's officers. If you are going to decline to join in the 'show cause' procedure, it's essential that you do so at the very beginning. It's no good joining in the game, and then leaving the field when you don't like the way the ball is bouncing.
Of course it takes big balls to refuse to participate, because you are in effect inviting CASA to prosecute you. There are, however, a couple of things to bear in mind here. Firstly, the very reason CASA has decided to use the 'show cause' procedure against you may well be that CASA recognises that the evidence is shaky, or even that the DPP has declined to prosecute.
Secondly, if CASA does prosecute and you are convicted, the punishment a Court imposes may well be less severe than that which CASA will impose. A court has the power to effectively cancel or suspend your license by imposing an "exclusion period" (under Section 30A of the Civil Aviation Act). If you are prosecuted and convicted, it might be wise to ask your barrister to draw the Court's attention to that power, and suggest to the Judge that he invite submissions on an exclusion period from CASA's barrister, before sentencing you. Why? The Court may be unaware of that power, and may therefore sentence you to a fine alone. A fine alone is likely to be heavier than a fine plus an exclusion period. And if the court fines you, CASA can still suspend your license under the 'show cause' procedure. If you have drawn the attention of the court to its power, you can then use that as your response to the next 'show cause' notice.
"I have been convicted of the offence you allege. The Court had power to impose an exclusion period when it sentenced me. (The Judge even invited pre-sentence submissions from CASA's counsel about an exclusion period.) It would therefore be unfair for CASA to impose a (further) suspension period."
This brings me back to a fundamental point. If CASA wants to talk with you, it's often wise to refuse. And by that I mean refuse. Don't answer any question however trivial or however obvious the answer. If they ask if you hold pilot license number 1234, just say "I do not wish to talk with you" - no more than that.
Be scrupulously careful to tell the truth at all times. If CASA asks you who was flying a particular aircraft on a particular occasion, don't say that you do not know. Simply say "I do not wish to talk with you". No matter how innocent you are, it's most unlikely you'll do yourself any good, ever, by co-operating. CASA's officers may see co-operation as weakness, and respond accordingly. Likewise, if CASA demands any paperwork, say that you wish to consult your lawyer before complying.
BEWARE THE LOG BOOK TRAWL
One of CASA's favourite tricks is the "Log Book Trawl". CASA demands your personal logbook in order to compare it with aircraft logbooks looking for minor discrepancies. It's wise to seek legal advice before handing any documents over, even if the Act or Regulations appear to require you to do so. If, for example, your logbook contained incriminating information you may be protected from having to hand it over by the general principle against self-incrimination. And the vast majority of logbooks DO reveal minor mistakes which are, under Australian rules, crimes.
If you refuse to speak to CASA or to hand anything over until you have received legal advice, it is unlikely that you will come to any harm. When you have legal advice, it will either be that you talk to CASA or that you do not. If your legal advice is that you should speak to CASA, and you then do so, you cannot be criticised. If your legal advice is that you should not speak to CASA you cannot be criticised - and you have probably done yourself a huge favour. If any lawyer ever advised me to talk to CASA or to hand documents over, I'd get a second opinion from a better lawyer!
DON'T HAND YOUR LICENCE OVER TO CASA BEFORE GETTING LEGAL ADVICE
I particularly advise against handing your pilot license over to CASA before getting legal advice. If CASA demands your license, say that you wish to consult your lawyer before complying. Then engage a lawyer - not necessarily right then, but without undue delay. That lawyer can then advise you whether or not you are legally obliged to comply. The problem with handing your license over is that one of CASA's favourite tricks is to refuse to return it - and then you cannot fly because you do not have your license in your personal possession. Gotcha!
WHAT CAN WE DO?
In my opinion CASA's 'show cause' process is fundamentally wrong, and no amount of tinkering with it can make it right. Australia has an excellent court system, and it is that system which should deal with the things which CASA now deals with under the 'show cause' process.
AOPA IS MISTAKEN TO ENDORSE THE 'SHOW CAUSE' PROCESS
I think AOPA is seriously mistaken to lend an air of legitimacy to the 'show cause' process by participating in it. Even if that participation improves outcomes in some individual cases, it seems to me to be mistaken to devote money and other resources to participating in the 'show cause' process rather than devoting that money and those resources to removing the process from the statute books. I fear that AOPA is reverting to the old method of dealing with the bureaucrats and their interpretation of the laws, rather than dealing with the politicians so that we change the laws under which the bureaucrats operate.
AOPA's assertion that "the rules of evidence will be followed" is misleading. The main thing which makes evidence generally truthful is the fact that witnesses know they can be jailed for giving false evidence to a Court. But you can't be jailed for giving false information to a "show cause" procedure. And, come to think of it, AOPA has asserted that "the rules of evidence will be followed" - but what has CASA said?
The basic problem with aviation in Australia is that the underlying law is bad. AOPA's money and resources should be devoted, first and foremost, to changing the underlying law. Sentence by sentence, clause by clause, measure by measure we can achieve that if we work at it relentlessly. CASA's bureaucrats are law-abiding people, and can be relied upon to comply with the law. If we get the bad law changed the problem will be solved.
I believe that the result of AOPA's decision to participate in the 'show cause' process is all too likely to be to advance the interests of the cronies of the committee members at the expense of the rank and file.
WHAT IS CASA'S ALTERNATIVE?
CASA's alternative to the 'show cause' procedure is for CASA to use the normal Court processes. That is, to put their evidence before a Court and allow the Court to decide whether or not you are guilty, and if guilty to decide the appropriate penalty. That, after all, is what the Police do when they believe a driver has offended.
The Court system is often slow, but in urgent cases an injunction can be obtained on a moment's notice. That is, CASA could go to the Court saying that it has evidence of serious wrongdoing and the Court could then issue an injunction which temporarily prevented you from (say) flying. An injunction can be obtained in far less time than is required by the 'show cause' process. The benefit for the accused person is that you have all the safeguards of the Court system. If, for example, your accuser is lying he is very likely to baulk when CASA asks him to swear an affidavit - because doing so would make him liable to charges of perjury and perverting the course of justice. Without that affidavit, CASA won't get the injunction. But under the 'Show Cause' process, an accuser can lie with impunity because his identity is concealed by CASA, and even if his identity becomes known he faces no risk of jail for lying in the course of a "show cause" procedure.
Our forefathers struggled for many generations to achieve a legal system which catches and punishes the guilty but protects the innocent. It is our right to have that system apply to all facets of our lives, aviation included. As aviators we were collectively silly to throw away that right by failing to object when CASA put the 'show cause' procedure on the statute books. But we can reclaim the right by getting the 'show cause' procedure off the statute books again.
CASA's OFFICERS ARE NOT QUALIFIED TO DECIDE WHO HAS BROKEN THE LAW
CASA often issues 'show cause' notices stating that a pilot has breached Section 20A of the Civil Aviation Act. This is simply preposterous. No-one knows what is a breach of that section, because the High Court has never decided on it. I wrote it myself, and AOPA subsequently pushed it into law. When I wrote it, one Sunday afternoon in a Canberra motel room, I wondered what the Courts would eventually decide it meant. It is up to the Courts, not CASA, to determine what that section means. But CASA officers have decided for themselves, and are freely handing out 'show cause' notices telling people they have breached this section. That is an outrage. If CASA's officers are satisfied that someone has breached it, you'd think they would have obtained a good number of convictions but (so far as I am aware) they have not obtained even one. Strange, isn't it?
THIS ALL SEEMS PRETTY SENSIBLE, BUT WHAT ABOUT THE COST?
What I suggest may indeed prove expensive. That is, of course, one of the main methods of intimidation that CASA uses.
But there is a solution. AIR SAFETY AUSTRALIA's members are generous, and they will stand behind you if you are threatened. If you are hit with a "show cause" notice, and yours is a good test case, I will personally donate money to help you and will urge other AIR SAFETY AUSTRALIA members to do likewise. I stress the requirement that yours be a good test case, but if you e-mail me on [email protected] or fax me on 02 9225 9127 I will promptly tell you whether or not it is.
AUTHOR - BOX
The author: Boyd Munro is a businessman and a pilot. He holds a British ATPL, an FAA ATPL fixed and rotary, and an Australian CPL fixed and rotary. He has been flying since 1966. Boyd has never flown for hire or reward, and obtained professional licenses solely to demonstrate that he meets professional standards. He is a previous President of AOPA Australia. He personally wrote the present section 20A of the Civil Aviation Act and led AOPA's fight to get it through Parliament until in 1995 it became law. He has flown the Atlantic Ocean 42 times in Piper Navajo aircraft since 1971. He won the multi-engine division of the 1981 Paris-New York trans-Atlantic race conducted by the Aero Club de France. He won the 1987 Singapore-Christchurch race conducted by the City of Christchurch.
Join Date: Jun 2006
Location: Central Queensland
Age: 61
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Private Aerial Baiting?
while it is true to say that aerial baiting may be carried out as a private operation because of the simplification of operations change in 2004 by CASA. It is still subject to state chemical control of use legislation that requires a aerial distribution contractors licence, which is only granted to companys holding a fixed wing/ rotary agricultural airwork AOC.
Just a clarification.
Regards JW
Just a clarification.
Regards JW
Amongst the names I see "Robert Collins", this expert keeps cropping up both here and in PNG doing all sorts of "government" work.
His website RD Collins & Associates | Company Profile | Aviation consultants, executive coaching, Robert Collins, aviation safety regulator, Australian Civil Aviation Safety Authority claims
QUOTE:
values include:
• Honesty
• Integrity and Professionalism,
• Reliability
• Respect and courtesy
• Continuous improvement
• Dedication to timely and high quality service.
UNQUOTE:
I wonder if these values were learned whilst at CASA (in its various guises).
The comment earlier of
could equally apply to another mentioned but really meaning "two sides of the Tasman"
One can never be confident of a satisfying outcome to any legal process, that is apart from the lawyers being well paid and having their ego's suitably stroked. One day the regulator will be found out, until then we will just have to aviate inspite of them.
I suppose we will now have to suffer another screaming skull outburst
about critical comment of CASA. So be it.
CC
His website RD Collins & Associates | Company Profile | Aviation consultants, executive coaching, Robert Collins, aviation safety regulator, Australian Civil Aviation Safety Authority claims
QUOTE:
values include:
• Honesty
• Integrity and Professionalism,
• Reliability
• Respect and courtesy
• Continuous improvement
• Dedication to timely and high quality service.
UNQUOTE:
I wonder if these values were learned whilst at CASA (in its various guises).
The comment earlier of
There is two sides to every story...
One can never be confident of a satisfying outcome to any legal process, that is apart from the lawyers being well paid and having their ego's suitably stroked. One day the regulator will be found out, until then we will just have to aviate inspite of them.
I suppose we will now have to suffer another screaming skull outburst
about critical comment of CASA. So be it.CC
