casa and the Show Cause Notice
Andy RR: Who gets to determine the relevant facts for such an administrative decision?
Up-into-the-air: Each and everyone is entitled to have the matter of accusation heard in a Court of their peers.
That’s the point.
It’s that simple.
And if you don’t like the situation, don’t waste your breath arguing with the regulator about it. If you want to change the situation, you need to stop electing dumb/dumber governments who assume their reason for being is to regulate every aspect of your life
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Amen – spot on.
CP - And if you don’t like the situation, don’t waste your breath arguing with the regulator about it. If you want to change the situation, you need to stop electing dumb/dumber governments who assume their reason for being is to regulate every aspect of your life
AAT conference.
The Hon. Justice Garry Downes AM President of the Administrative Appeals Tribunal Judge of the Federal Court of Australia 26 August 2009.
In virtually every respect the Tribunal’s decision is the agency’s decision. The agency carries it into effect or enforces it, as if it was its decision. It supervises its implementation. To the agency is given the role of ascertaining whether the decision is no longer applicable and if subsequent events require the decision to be revoked or varied, such as when a social security recipient ceases to qualify for a pension, it is for the agency to cancel the pension.
In virtually every respect the Tribunal’s decision is the agency’s decision. The agency carries it into effect or enforces it, as if it was its decision. It supervises its implementation. To the agency is given the role of ascertaining whether the decision is no longer applicable and if subsequent events require the decision to be revoked or varied, such as when a social security recipient ceases to qualify for a pension, it is for the agency to cancel the pension.
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The only appeal from an administrative decision taken by CASA, after internal review, is a review by the AAT.
The only appeal to a decision by the Tribunal is to the Federal Court and then only on a question of law. There is no review of the merits of the decision.
I wonder how a constitutional argument would go on the basis that a licence is property and the revocation of a licence by administrative means is an acquisition of property requiring s51 (xxxi) compensation on just terms?
Kaz
The only appeal to a decision by the Tribunal is to the Federal Court and then only on a question of law. There is no review of the merits of the decision.
I wonder how a constitutional argument would go on the basis that a licence is property and the revocation of a licence by administrative means is an acquisition of property requiring s51 (xxxi) compensation on just terms?
Kaz
kaz3g: I wonder how a constitutional argument would go on the basis that a licence is property and the revocation of a licence by administrative means is an acquisition of property requiring s51 (xxxi) compensation on just terms?
:
“The Parliament shall, subject to this Constitution, have power to make laws with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.”
The only appeal from an administrative decision taken by CASA, after internal review, is a review by the AAT.
The only appeal to a decision by the Tribunal is to the Federal Court and then only on a question of law. There is no review of the merits of the decision.
I wonder how a constitutional argument would go on the basis that a licence is property and the revocation of a licence by administrative means is an acquisition of property requiring s51 (xxxi) compensation on just terms?
The point of administrative actions against licences etc is that the holder no longer satisfies the criteria for holding the licence etc. Failure to satisfy those criteria may not be, and in most cases is not, a crime, and in many cases may be a genuine tragedy with profound consequences for lots of people. But the criteria for holding the licence are either met or they’re not, and the relevant procedures, the courts and tribunals with jurisdiction, the evidential burdens and processes to work out whether the criteria are met, or not, have little, if anything, to do with juries of peers, or smoking guns, or rights to silence, or beyond reasonable doubt or any of the other folklore that circulates about these matters.
If, as Creampuff states (and I have nothing to contradict him on this) the Administrator (i.e. CASA) gets to determine the relevant facts of the case without any independent review process then once you're in the system, you are basically stuffed. (edit: I see Creampuff has qualified the situation, if not clarified it, whilst I was writing this).
The only way to avoid getting in the system are to metaphorically fly under the radar, or failing that, to keep sweet with the guys that might take you there. The latter has more than a whiff of potential for corruption...
Nothing about this is surprising in my view, since I consider the state to be nothing more than a protection racket with a public relations department. Those that work in the various government departments know they are being paid with the proceeds of protection money and they aren't about to give up their little cushy number easily. When you get a chance to see through the cracks in the veneer of democratic legitimacy, it shouldn't be a surprise to anyone to see a few victims being bent over and reamed by the 'enforcers'.
Oh, and kaz3g, save your money and resist the temptation to take your legal arguments to court. You will only make the laywers rich and achieve little for humanity despite your best endeavours and intentions.
edit to add: I think a test of whether a licence is property or not would be whether it is transferable in some way, or not. In the case of a FCL, I'd say it was definitely not transferable and therefore not property. A water licence or a commercial fishing licence might be examples of a licences that are transferable and therefore could be considered property.
The only way to avoid getting in the system are to metaphorically fly under the radar, or failing that, to keep sweet with the guys that might take you there. The latter has more than a whiff of potential for corruption...
Nothing about this is surprising in my view, since I consider the state to be nothing more than a protection racket with a public relations department. Those that work in the various government departments know they are being paid with the proceeds of protection money and they aren't about to give up their little cushy number easily. When you get a chance to see through the cracks in the veneer of democratic legitimacy, it shouldn't be a surprise to anyone to see a few victims being bent over and reamed by the 'enforcers'.
Oh, and kaz3g, save your money and resist the temptation to take your legal arguments to court. You will only make the laywers rich and achieve little for humanity despite your best endeavours and intentions.
edit to add: I think a test of whether a licence is property or not would be whether it is transferable in some way, or not. In the case of a FCL, I'd say it was definitely not transferable and therefore not property. A water licence or a commercial fishing licence might be examples of a licences that are transferable and therefore could be considered property.
Last edited by Andy_RR; 8th May 2012 at 10:50.
edit to add: I think a test of whether a licence is property or not would be whether it is transferable in some way, or not. In the case of a FCL, I'd say it was definitely not transferable and therefore not property. A water licence or a commercial fishing licence might be examples of a licences that are transferable and therefore could be considered property.
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CP - The point of administrative actions against licences etc is that the holder no longer satisfies the criteria for holding the licence etc. Failure to satisfy those criteria may not be, and in most cases is not, a crime, etc.
Phelan - No analysis of the safety risk is required, and “reason to believe” is deemed sufficient cause at this point. CASA has often cited the “serious and imminent risk to air safety” concept in actions of this kind since its introduction in new legislation in 2003, etc.
Not only does a business shutdown cripple an organisation which is usually running on pretty tight margins. It also publicises the situation to the company’s commercial disadvantage by creating doubt amongst customers, sales agents, suppliers, creditors and competitors. It also places instant additional stress on management, which may be faced with the need to dismiss staff, thereby putting workers under stress as well. Up to this point CASA hasn’t been called on to prove anything at all.
Not only does a business shutdown cripple an organisation which is usually running on pretty tight margins. It also publicises the situation to the company’s commercial disadvantage by creating doubt amongst customers, sales agents, suppliers, creditors and competitors. It also places instant additional stress on management, which may be faced with the need to dismiss staff, thereby putting workers under stress as well. Up to this point CASA hasn’t been called on to prove anything at all.
No one could afford to challenge them on Constitutional grounds though they have had a hammering every time out of the box, even then the administration would just find some wriggle room and slither out from under (again).
I'm not sure just what CASA think they are trying to achieve, but it has sweet sod all to do with improving safety or gaining the confidence, respect and cooperation of the industry, domestically or internationally.
The latest rubbish related to J* apples and Tiger oranges has the FAA rolling in the aisles.
Nope, this is a job for responsible gummint, CP has the right of it.
Kaz3g and others, CASA is way ahead of you: A pilots licence is a priviledge it isn't property.
Of course, since it is a priviledge, and not a right or a property, it can be revoked at will - the rules of natural justice and procedural fairness, as now being unctously applied to the cases of Peter Slipper and Craig Thompson, don't apply to you.
Follow the rules, obey the law and hope to Christ you don't come to the attention of CASA for any reason.
Of course, since it is a priviledge, and not a right or a property, it can be revoked at will - the rules of natural justice and procedural fairness, as now being unctously applied to the cases of Peter Slipper and Craig Thompson, don't apply to you.
Follow the rules, obey the law and hope to Christ you don't come to the attention of CASA for any reason.
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A pilots licence is a priviledge
You then have a right to exercise that privelege once granted.
Therefor that privelege has a value.
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the rules of natural justice and procedural fairness, as now being unctously applied to the cases of Peter Slipper and Craig Thompson, don't apply to you.
Slipper on the other hand is entitled to no presumption of innocence given that the above Author of "the fair work Act", included a reversal of the burden of proof from the accuser to the accused. A little ploy designed to give the worker the moral high ground over the employer in matters such as sexual harrassment.
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Adventures in Blunderland
Last nights meeting of the Bar Room Barristers began and ended with matters constitutional. We ventured into the deep murky waters of whether CASA using the AAT 'system' instead of a court process was actually unconstitutional.
At the risk of a sharp rebuff from Creampuff (accepted in good spirit), and given there are super legal eagles who deal with these heady matters, which I accept as being way beyond the ken of mere mortals; I beg some indulgence from the peers in the name of education.
We probably made every mistake in the lawyers handbook, but after a few cold ones, it made some sense. So, let the simplistic questions stand.
Is using the AAT in the CASA style unconstitutional ??. (Civil liberties etc.).
How could this be tested ?. Fiscal limitations not withstanding.
At the risk of a sharp rebuff from Creampuff (accepted in good spirit), and given there are super legal eagles who deal with these heady matters, which I accept as being way beyond the ken of mere mortals; I beg some indulgence from the peers in the name of education.
We probably made every mistake in the lawyers handbook, but after a few cold ones, it made some sense. So, let the simplistic questions stand.
Is using the AAT in the CASA style unconstitutional ??. (Civil liberties etc.).
How could this be tested ?. Fiscal limitations not withstanding.
CASA doesn’t use the AAT.
People affected by CASA’s decisions use the AAT.
The AAT has jurisdiction to review a very broad range of administrative decisions at the Commonwealth level. That’s Commonwealth policy. (And, to continue on a theme, if you don’t like it, it’s pointless arguing with CASA about it.) But you could give it go: lobby the Commonwealth AG to remove the AAT's jurisdiction to review CASA's decisions. CASA would love you for it, I suspect ....
The AAT gives the person affected by a decision the opportunity to have it reviewed, on the merits, by someone external to the agency which made the decision. Take that away, and all you have left is judicial review, which is very narrow, very expensive and has nothing to do with juries of peers or beyond reasonable doubt or any of the other folklore that persists.
By the way, numerous people on the AAT are Federal Court judges.
Here’s the fundamental aspect of AAT review that jars with the kinds of people that gnash and wail about CASA on this forum: If you seek review of a CASA decision, you will almost invariably have to give evidence if you want the AAT to understand aspects of the matter about which you alone know, or have first-hand knowledge. And if you’re a bush lawyer or smart*arse who thinks the AAT won’t see through your half-truths, selective-memory, or god’s-gift-to-aviation attitude, you are - not to put too fine a legal point on it - stuffed.
People affected by CASA’s decisions use the AAT.
The AAT has jurisdiction to review a very broad range of administrative decisions at the Commonwealth level. That’s Commonwealth policy. (And, to continue on a theme, if you don’t like it, it’s pointless arguing with CASA about it.) But you could give it go: lobby the Commonwealth AG to remove the AAT's jurisdiction to review CASA's decisions. CASA would love you for it, I suspect ....
The AAT gives the person affected by a decision the opportunity to have it reviewed, on the merits, by someone external to the agency which made the decision. Take that away, and all you have left is judicial review, which is very narrow, very expensive and has nothing to do with juries of peers or beyond reasonable doubt or any of the other folklore that persists.
By the way, numerous people on the AAT are Federal Court judges.
Here’s the fundamental aspect of AAT review that jars with the kinds of people that gnash and wail about CASA on this forum: If you seek review of a CASA decision, you will almost invariably have to give evidence if you want the AAT to understand aspects of the matter about which you alone know, or have first-hand knowledge. And if you’re a bush lawyer or smart*arse who thinks the AAT won’t see through your half-truths, selective-memory, or god’s-gift-to-aviation attitude, you are - not to put too fine a legal point on it - stuffed.
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Naiveté meets the beast
Thanks Creampuff – we got that far all on our lonesome, understand the way of it. No problems. That leaves a couple of annoying little details hanging in the breeze; to debate them fully would take all week and would no doubt have to be 'case' specific. As stated, we are but babes in the wood so to take a broader view on lets call them, 'types' of cases, such as the suspension of a license or parts thereof.
Given that CASA can and do arbitrarily, without having to provide a shred of evidence cancel or suspend at will, effectively preventing that person from earning a living, based on a catch all excuse of public safety is bollocks. For every 10 that fight perhaps one ever ends up back where they were. Review Max Davies case for a prime example of one of a dozen. Max v The Beast.
Suspend for a period, absolutely if required, but then there must be a part where a court assessment followed by punishment (if required) can be dealt with under the rules of evidence. Then restoration and absolution (done the crime, do the time).
The AAT as you quite rightly point out 'belongs' to the regulator, the rules of evidence are 'fluffy' and there is little or no case to answer when blatant misuse of 'hearsay evidence' is embraced by pro barristers. JQ v The beast.
As it stands there is no end game, permanently denying a pilot the right to earn a living by stealth cannot, by any measure be considered fair, reasonable or just. If the CASA is not going to depend on the criminal code and penalties, why are they written into the regulations with such vehemence?. Pointless.
For my mortgage, it's an injunction then prove it or loose it.
Oh boy, my chance to be a CASA pin up boy, bliss. Make a change from a mug shot on a dart board. Perhaps I'll start a CAA fan club. 
Given that CASA can and do arbitrarily, without having to provide a shred of evidence cancel or suspend at will, effectively preventing that person from earning a living, based on a catch all excuse of public safety is bollocks. For every 10 that fight perhaps one ever ends up back where they were. Review Max Davies case for a prime example of one of a dozen. Max v The Beast.
Suspend for a period, absolutely if required, but then there must be a part where a court assessment followed by punishment (if required) can be dealt with under the rules of evidence. Then restoration and absolution (done the crime, do the time).
The AAT as you quite rightly point out 'belongs' to the regulator, the rules of evidence are 'fluffy' and there is little or no case to answer when blatant misuse of 'hearsay evidence' is embraced by pro barristers. JQ v The beast.
As it stands there is no end game, permanently denying a pilot the right to earn a living by stealth cannot, by any measure be considered fair, reasonable or just. If the CASA is not going to depend on the criminal code and penalties, why are they written into the regulations with such vehemence?. Pointless.
For my mortgage, it's an injunction then prove it or loose it.
CP - CASA would love you for it, I suspect ....
So CP what you are saying is that if you fall foul of the CAA, then grab a handful of this........
bend over and be prepared to take one of these........
..........cause your stuffed!
bend over and be prepared to take one of these........
..........cause your stuffed!
Not saying that at all, sarcs, unless you’re dangerously incompetent, in which case I’d prefer CASA to use the pineapple on you without the lubrication…
In another thread, blackhand said:
Posters on pprune don’t know what they don’t know. They don’t know how many ‘show cause’ processes end up with CASA deciding not to proceed any further, or deciding to take less severe regulatory action, based on the response of the recipient of the ‘show cause’ notice.
I did not point out anything of the sort.
Rubbish. 
And I always read, with interest, Mr Phelan’s extraordinarily well written and well researched expositions of half of the story.
In another thread, blackhand said:
The Show Cause can work well. Having replied to a few with satisfactory outcome for my clients.
More serious ones that have ended up at AAT have variable outcomes.
Some GA operators interpret a reg to their own advantage and then find a Solicitor that agrees with them. Well for a substantial fee anyway. …
More serious ones that have ended up at AAT have variable outcomes.
Some GA operators interpret a reg to their own advantage and then find a Solicitor that agrees with them. Well for a substantial fee anyway. …
Kharon: … The AAT as you quite rightly point out 'belongs' to the regulator …
Kharon: … Given that CASA can and do arbitrarily, without having to provide a shred of evidence cancel or suspend at will …
And I always read, with interest, Mr Phelan’s extraordinarily well written and well researched expositions of half of the story.
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Stand corrected ??.
CP - And I always read, with interest, Mr Phelan’s extraordinarily well written and well researched expositions of half of the story.
We wait with baited breath, speak up mate, you now have everyone's attention.