Glen Buckley and Australian small business -V- CASA

[Arm out the window]

It’s becoming more obvious monthly that Spence has been brought in to clean up the mess as numerous heads have already rolled.

What's going to be less easy to do is shift the architects of the woeful and byzantine new regs out of their entrenched positions, though at least some action is better than none.

[glenb]

Offence of Stalking and assault- Victoria

They were very specific allegations of stalking and assaulting.

Stalking and Assault

Stalking Offences (Vic)

Stalking is a serious offence in Victoria, which can attract significant periods of imprisonment. A person commits stalking if they engage in a couse of conduct intended to cause a victim harm or to put the victim in fear for their safety or the safety of someone else.

The stalking provision in the Crimes Act was amended in 2003 to encompass cyberstalking and to remove the requirement that the victim actually suffered harm. The offence was further amended in 2011 to cover threats and abusive conduct and to extend to acts intended to cause psychological harm.

Section 21A

Section 21A of the Crimes Act 1958 makes it an offence to stalk a person. This is punishable by a maximum of 10 years imprisonment.

Stalking is defined as a course of conduct that includes doing any of the following with the intention of causing physical or mental harm to the victim, including self-harm or apprehension of fear for their safety:

• Contacting the victim or another person;
• Publishing material relating to the victim or another person;
• Causing an unauthorised computer function;
• Tracing the victim’s or another person’s use of the internet, email or other electronic communications;
• Entering or loitering outside a place of residence or business frequented by the victim;
• Interfering with property;
• Making threats to the victim;
• Using abusive or threatening words to or in front of the victim;
• Performing abusive or offensive acts in the presence of the victim;
• Directing abusive or offensive acts at the victim;
• Giving offensive material to the victim;
• Keeping the victim or another person under surveillance;
• Acting in any other way that could reasonably cause harm to or arouse fear in the victim.

The provision does not apply to conduct engaged in for the purpose of enforcing the law, executing a warrant or protecting public revenue.

What must be proved?

For a person to be found guilty of stalking, three things must be proved.

1. The accused engaged in a course of conduct

A course of conduct is a pattern of behaviour that shows a continuity of purpose towards the victim. In order for there to be a continuity of purpose, the acts must have been premeditated.

The acts must have been committed on more than one occasion, or to have been protracted in nature. A course of conduct may be spread out over a period of years.

2. The course of conduct included conduct of the type described above

The course of conduct must have included at least one of the types of conduct described in Section 21A. The acts need not have been individually unlawful. It is the course of conduct and specific intent that amounts to a criminal offence.

3. The accused did the acts intentionally

The accused must be proved to have had the intention to cause physical or mental harm to the victim, or to arouse fear in the victim for their own safety or the safety of another. Mental harm includes psychological harm and suicidal thought.

This element may be satisfied by proving that the victim:

• Actually intended to cause such harm;
• Knew that their actions were likely to cause such harm;
• Should have known that their actions would be likely to cause such harm.

Where the accused was intoxicated and did not have the requisite intention, they may still be found guilty on the basis that they ought to have known their actions would be likely to cause harm.

Defence

It is a defence to a charge of stalking if the course of conduct was engaged in without malice for one of the following purposes:

• In the normal course of business, trade, profession or enterprise;
• For the purpose of an industrial dispute;
• For the purpose of engaging in political activities or communicating about public affairs.

The accused bears the burden of proof in establishing that they acted without malice.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers.




Regarding the allegation of assault, i am assuming that it is an allegation of unlawful assault, being the lowest. Had it of been one of the more serious assaults, it is more likely that I would have been aware of it. It may be that the allegation is one of the more serious levels, but for this post, I am assuming it is only unlawful assault.

UNLAWFUL ASSAULT

In Victoria, the maximum penalty for unlawful assault (which may also be referred to as ‘common assault’) is a fine of 15 penalty units or three months imprisonment. This offence is considered the least serious of the assault offences. Generally, individuals are charged with unlawful assault when a person assaults another person without causing injury.

Unlawful assaults can be complicated if there are aggravating factors. It is important to get legal advice at an early stage to ascertain precisely what the consequences of a conviction may be and whether you have a defence to the charge.

The Offence Of Unlawful Assault

The offence of unlawful assault is contained in section 23 of the Summary Offences Act 1966 which states:
Any person who unlawfully assaults or beats another person shall be guilty of an offence.

What Actions Might Constitute Unlawful Assault?

Whilst the slightest touch might constitute unlawful assault, usually police would not charge a person with unlawful assault unless there is a significant degree of force applied or there is evidence that threats of violence were made.

An unlawful assault may consit of:

• Punching, hitting or kicking another person without causing bodily harm;
• Spitting upon another person;
• Threatening to hurt another person.

What The Police Must Prove

To convict a person of unlawful assault, the prosecution must prove each of the following elements beyond a reasonable doubt:

• They struck/touched/applied force to another person, or threatened another with immediate violence;
• They did so intentionally or recklessly;
• The actions were not consented to by the victim;
• There is no other lawful justification or excuse.

Possible Defences For The Charge Of Unlawful Assault

Possible defences to a charge of unlawful assault include but are not limited to:

• The accused has a lawful justification or excuse;
• The accused acted in self-defence or in defence of another
• The complainant consented to the assault
• The assault was not intentional or foreseeable.

Which Court Will Hear Your Matter?

Unlawful assault is a summary offence and will be heard at the Magistrates’ Court.

[glenb]

Re post 2262- Letter to Mp Carina Garland

Not necessarily worth backtracking but in post 2262 i had a draft copy of correspondence for Ms. Carina Garland. I applied some very minor changes only and have now sent it. That final copy now sits at post 2262.
I eagerly await her response.

[AerialPerspective]

Originally Posted by Paragraph377

And as a reward for Mr Carmody's ‘performance’ he received a nice fat retirement superannuation package in the millions, plus an AOM. Woohoo! What a champion he is.

The OAM and the AM are now pretty much a sick joke.
Let's face it, when a certain ex QF exec gets one for leading the competitor airline to the point of bankruptcy, shortly after he left, what in the name of Ch--st about that deserves a naitonal 'award'??

[AerialPerspective]

Originally Posted by Lead Balloon

Whatever the theoretical circumstances - 'long bow' or not, 'very loose' or not - 'something' must surely have been construed as constituting assault and stalking of Carmody's staff. But if there is no record at all in CASA of any circumstance that has been construed by a staff member as assault or stalking by Glen, I have great difficulty in concluding anything other than that Carmody just made it up.

If that's true LB, isn't that an offence?? Making a vexatious claim about someone without proof or evidence??
The fact it was done under the umbrella of Parliamentary Privilege is just gutless, if true.
I'm not holding my breath but I believe that the Senate or the House can waive privilege if they collectively believe the statement(s) don't fit with the purpose of it.

[A30_737_AEWC]

Originally Posted by AerialPerspective

The OAM and the AM are now pretty much a sick joke.
Let's face it, when a certain ex QF exec gets one for leading the competitor airline to the point of bankruptcy, shortly after he left, what in the name of Ch--st about that deserves a naitonal 'award'??

For those who are not aware, ANYONE can nominate a person for an civilian honour or award under Australia's system of honours/awards.

I know of a cavalcade of senior military officers (who I've worked around or have direct knowledge of their work roles/activities) and their many non-combat/non-military action related honours/awards are based on individuals who basically turn up for work. How you can get a CSC for working in the procurement/sustainment arm of Defence is beyond a joke IMO. It's basically a mutual admiration society of the more senior retired officers nominating the up-and-coming seniors following in their foot steps.

There are many civilians working in many sectors of business and society whose 'herculean efforts' in public service and advocacy go unrecognised and unrewarded.

If any of you know anyone whose professional or volunteer activities warrant appropriate recognition in this way, please take it upon yourself to do the groundwork and submit a nomination for them. I'm considering doing this for 2 selfless individuals I am aware of.

https://www.gg.gov.au/australian-hon...-someone-award

[megan]

Anyone with the necessary word smithing skills able to make a persuasive argument to Four Corners for them to examine Glen's travesty of justice?

[Lead Balloon]

Originally Posted by AerialPerspective

If that's true LB, isn't that an offence?? Making a vexatious claim about someone without proof or evidence??
The fact it was done under the umbrella of Parliamentary Privilege is just gutless, if true.
I'm not holding my breath but I believe that the Senate or the House can waive privilege if they collectively believe the statement(s) don't fit with the purpose of it.

In principle, the giving to a Senate Committee of any evidence that a witness knows to be false or misleading is a contempt (see Senate resolution 6(12)).

Offences by witnesses etc.

A witness before the Senate or a committee shall not:

(a) ..;

(b) ...; or

(c) give any evidence which the witness knows to be false or misleading in a material particular, or which the witness does not believe on reasonable grounds to be true or substantially true in every material particular.

But I can't recall any official being held in contempt of the Senate. It's not in the Laborials' interests to do so.

There are also some protections for people who get dumped on in the circumstances Carmody dumped on Glen:

(1) Where a person who has been referred to by name, or in such a way as to be readily identified, in the Senate, makes a submission in writing to the President:

(a) claiming that the person has been adversely affected in reputation or in respect of dealings or associations with others, or injured in occupation, trade, office or financial credit, or that the person's privacy has been unreasonably invaded, by reason of that reference to the person; and

(b) requesting that the person be able to incorporate an appropriate response in the parliamentary record,

if the President is satisfied:

(c) that the subject of the submission is not so obviously trivial or the submission so frivolous, vexatious or offensive in character as to make it inappropriate that it be considered by the Committee of Privileges; and

(d) that it is practicable for the Committee of Privileges to consider the submission under this resolution,

the President shall refer the submission to that committee.

(2) The committee may decide not to consider a submission referred to it under this resolution if the committee considers that the subject of the submission is not sufficiently serious or the submission is frivolous, vexatious or offensive in character, and such a decision shall be reported to the Senate.

(3) If the committee decides to consider a submission under this resolution, the committee may confer with the person who made the submission and any senator who referred in the Senate to that person.

(4) In considering a submission under this resolution, the committee shall meet in private session.

(5) The committee shall not publish a submission referred to it under this resolution or its proceedings in relation to such a submission, but may present minutes of its proceedings and all or part of such submission to the Senate.
In considering a submission under this resolution and reporting to the Senate the committee shall not consider or judge the truth of any statements made in the Senate or of the submission.

(6) In its report to the Senate on a submission under this resolution, the committee may make either of the following recommendations:

(a) that no further action be taken by the Senate or by the committee in relation to the submission; or

(b) that a response by the person who made the submission, in terms specified in the report and agreed to by the person and the committee, be published by the Senate or incorporated in Hansard,

and shall not make any other recommendations.

A document presented to the Senate under paragraph (5) or (7):

(a) in the case of a response by a person who made a submission, shall be succinct and strictly relevant to the questions in issue and shall not contain anything offensive in character; and

(b) shall not contain any matter the publication of which would have the effect of:

(i) unreasonably adversely affecting or injuring a person, or unreasonably invading a person's privacy, in the manner referred to in paragraph (1); or

(ii) unreasonably adding to or aggravating any such adverse effect, injury or invasion of privacy suffered by a person.

If I were Glen, I would be writing to the President of the Senate (but that's a matter for him and, for all I know, he may already have).

- Referred to by name - tick

- Adversely affected in reputation - I reckon public allegations that a person has assaulted and stalked public officials have adverse affects on the person's reputation (though perhaps there's an argument that nobody ever took Carmody seriously about anything).

- It would be a very big call to find that a submission to the President, to the effect that allegations of assault and stalking made by a Senate Committee witness against a named person are false, are "so obviously trivial or the submission so frivolous, vexatious or offensive in character as to make it inappropriate that it be considered by the Committee of Privileges".

- A statement by the Senate or incorporated in Hansard as to the Senate's position on the matter would go some (small) way to vindication.

But always remember: There's a reason it's called 'Cowards' Castle'.

[AerialPerspective]

Originally Posted by A30_737_AEWC

For those who are not aware, ANYONE can nominate a person for an civilian honour or award under Australia's system of honours/awards.

I know of a cavalcade of senior military officers (who I've worked around or have direct knowledge of their work roles/activities) and their many non-combat/non-military action related honours/awards are based on individuals who basically turn up for work. How you can get a CSC for working in the procurement/sustainment arm of Defence is beyond a joke IMO. It's basically a mutual admiration society of the more senior retired officers nominating the up-and-coming seniors following in their foot steps.

There are many civilians working in many sectors of business and society whose 'herculean efforts' in public service and advocacy go unrecognised and unrewarded.

If any of you know anyone whose professional or volunteer activities warrant appropriate recognition in this way, please take it upon yourself to do the groundwork and submit a nomination for them. I'm considering doing this for 2 selfless individuals I am aware of.

https://www.gg.gov.au/australian-hon...-someone-award

That's good to know but still begs the question how the hell a bloke who took over a profitable airline then ran it into the ground to the point it went into Administration got nominated and by whom.......

[glenb]

10/08/22 Ombudsman phone call and my followup

11/08/22

Ombudsman Reference 2019-713834.

Dear Catherine

Thankyou for your time on the phone yesterday (10/08/22).

I think the approach of breaking the matter down into the three topics will assist in handling what is obviously a technically challenging matter.

1. The direction that my continuing employment was untenable.
2. The closure of MFT, my flying school of more than a decade.
3. The closure of APTA,

Today we covered topics one and two only and will talk again regarding topic three.

On topic one, I believe I have communicated the following.

The Head of Operations position requires a formal application to CASA, a CASA assessment and interview, and a CASA approval. Without that CASA approval, an individual is not able to operate in the role of Head of Operations. The position is dependent on that continuing CASA approval. If CASA deem the holder not to be a fit and proper person, CASA has procedures in their Enforcement Manual accessed via this link https://www.dropbox.com/s/e4g6j45mpv...anual.pdf?dl=0

The manual in its entirety is a pertinent read, but I draw your attention to pages 6-33 in particular. It outlines the position of the Chief Pilot. That was the terminology prior to the legislative changes. That role is now the Head of Operations (HOO), being one of the three legislated positions in the legislation. Further details of that role can be accessed here Civil Aviation Safety Regulations 1998 (legislation.gov.au) at CASR 142.185 and CASR 142.190.

Appendix Four of that same document addresses the “fit and proper person”

The ICC response to this matter is attached for your reference. https://www.dropbox.com/s/h1dwih4f30...ponse.pdf?dl=0

As you are aware I believe there was a breach of obligations under administrative law, CASA own procedures, natural justice and procedural fairness.

On 27th August 2019, the CASA Regional Manager sent an email stating that my continuing employment as the “HOO is no longer tenable with the comments that Mr Buckley is making publicly.”

I acknowledge that we had a discussion as to whether that direction equates to CASA declaring me not to be a fit and proper person and therefore not able to maintain the role of HOO.

As you are aware I am of the opinion that is a very clear direction from CASA to the Employer that my continuing employment in that role was no longer tenable. I cannot possibly imagine a clearer direction.

The mere fact that CASA Regional Manager, Mr Mc Heyzer chose to completely bypass CASA stipulated procedures in that determination, should not mean that the decision no longer becomes an accountable decision. I should still be entitled to procedural fairness, as though correct procedures had been followed.

I have attached the link to the “Jason McHeyzer” file for your reference. The entire document makes an interesting read. It is in chronological order, and emails regarding my employment can be found in the latter part of the document.

https://www.dropbox.com/s/qkzhwgp5es...%2018.pdf?dl=0

I also raised my strong desire for CASA to identify the comments that I was making publicly. I believe that if CASA send a direction to my employer that my continuing employment is no longer tenable based on comments that I am making publicly, then it is fair and reasonable that CASA identify to me those comments that their determination was based on.

I point out that the Employer interpreted it the same way that I did as I was terminated on the spot. I advised you that in my opinion the subsequent communications after I was terminated were “back pedalling”

I did clarify the situation with regard to the Employer offering me alternative employment. I have clarified the nature of that “employment”. I was required to set up my own business with an ABN. The Employer offered me approximately 10 hours per week teaching theory classes on a casual contracting basis. Due to the low volume of students that employment continued for approximately 6 weeks, at which stage I left the industry.

Having had CASA remove me from the role of HOO, my options were non-existent.



On Topic Two

I explained to you the inexplicable nature of CASAs determination that my business MFT was now operating unlawfully. I refer you to the initial notification from CASA that can be accessed here.

https://www.dropbox.com/s/k3qn3qdgoa...ation.pdf?dl=0

I believe that I made it very clear that there were absolutely no changes to the way that MFT operated. The only change was a change of name of the parent company from MFT to APTA. The trading name MFT remain unchanged.

It is unlikely that anyone within my Organisation would have been aware of any change at all. I had no reason to discuss a name change only, of the parent company, with the pilots. It is likely that the office/admin staff would have been aware.

If CASA have closed my flying school of more than a decade down because there was some change, then it is fair and reasonable that CASA clearly identify exactly what changes there were, that made my school of more than a decade suddenly become an unauthorised operation.

I was suddenly in contravention of s29 of the Civil Aviation Act. Absurdly the correspondence states that the situation does not alter even if

1. I am the Owner and director
2. Using my own procedures.
3. I am paying myself a fee and
4. Using my own personnel.

Truly, this is absurd, and must be unlawful. Whilst I disagree with CASA on the wider issue of the “sister schools”, I absolutely have no understanding at all as to how my school of more than a decade suddenly became unlawful, and I think it is incumbent on CASA to provide me with an explanation.

This matter has resulted in a number of significant consequences. I currently have issues with the tax department, an upcoming case in the Supreme Court as a Defendant, and staff and suppliers rightfully chasing me for entitlements.

In order to explain my position to the Tax Office, Judges etc, I must have a clear explanation from CASA. In a recent appearance before VCAT, my inability to explain the rationale behind the CASA decision making was interpreted as deceit. That was a very sad moment for me personally and had quite an impact. I cannot put myself in that situation again.

An explanation from CASA is essential.

Thank you for your time on the phone, and I hope you don’t mind the follow up correspondence. I appreciate that you are dealing with a number of matters in addition to mine. I hope this correspondence and the links can assist you.

I look forward to the opportunity to discuss the third topic when we next chat.

Thankyou sincerely for your time and your ear.

Cheers. Glen.

[Lead Balloon]

As a matter of interest, why was your employer at the time of the McHeyzer correspondence so spineless? If I’d received the email as your employer, I would have - in slightly more diplomatic language - told McHeyzer to go and get f*cked.


On the section 29 issue, I’ll preface what I’m about to say with a statement I’ve made many times over decades of unravelling corporate pea and thimble tricks: Those who wish to enjoy the benefits of the corporate veil have to cop the pitfalls.

In relation to MFT, you keep saying “my” flying school. Given your reference to a ‘parent company’, I assume the AOC under which the MFT flying school was operating was issued to a corporate entity and not you personally. Is that assumption correct? If yes, the MFT flying school was, under the aviation law (at least) the corporate entity’s, not yours personally.

Let’s call that corporate entity ‘Person A’.

You then refer to a ‘change of name of the parent company’ of Person A. If it was in fact the parent company of Person A, the parent was a different entity to Person A.

Let’s call the parent corporate entity ‘Person B’. (I assume that’s APTA?)

We’ll call you ‘Person C’.

Note that there are 3 separate legal persons here, notwithstanding that they are ‘related’. Only one of them has been issued an AOC for the MFT flying school: Person A.

To put this another way, despite Person B and Person C having some control over Person A as a consequence of shareholding and officership, respectively, neither Person B nor Person C holds the MFT flying training AOC. And Person A cannot transfer its AOC to Person B or Person C. That would be like me saying I’ve ‘transferred’ my driver’s licence to my Mum or Dad.

Mere changes of trading names have no effect on any of this. It doesn’t matter whether ‘Person A’ or ‘Person B’ have the trading name Arthur, Martha or McGuirkinsquirter (just as it doesn’t matter whether you change your name to Arthur, Martha or McGuirkinsquirter). The legal person remains the same and has all of the same legal obligations and rights, despite what its name might be from time to time. Despite any and all mere changes of name by any of them, only Person A has authority under the aviation law for MFT flying training.

So here’s the fundamental problem as I see it, based on my understanding of the facts (which I may have wrong - please correct me).

You (Person C) made arrangements such that the business previously being done by the MFT entity (Person A) started being done by APTA (Person B). Fundamental problem: APTA didn’t have an AOC authorising MFT flying training.

I know that, as a matter of practicality, it was all the same humans doing the same things under the same procedures. But they were doing it for the APTA entity, not the MFT entity.

This all may seem extraordinarily silly and artificial but, them’s the pitfalls of the corporate entity benefits.

It’s like an individual who incorporates and is the sole director and shareholder of a company which buys an aircraft and hires it back to the individual at an ‘arm’s length’ rate. Great for limiting the liability of the individual and there may be tax benefits. But…

The company is the legal owner of the aircraft, not the individual. If it’s insured by the company (tax deductible premium), the insurance responds to the liability of the company, not the individual, and the proceeds of insurance are the company’s, not the individual’s (unless the individual is named as an insured along with the company). And there may be implications under the aviation law. For example, under proposed Part 43 as drafted, the aircraft is used ‘for hire’ and, therefore, 100 hourly inspections (along with annuals) would be required. The individual might claim that the aircraft is ‘really’ the individual’s and there’s no hire ‘really’ going on because the individual is in control of everything but - alas - that ain’t how the law sees it.

I hope that makes some sense and, for your sake, that my reading of the facts between the lines is mistaken.

[glenb]

Lead Balloon

On my way into work, and wanted to try and respond before i go off air until tonight.

I have read your post, on the side of the road here, and believe i get the gist of it.

Regarding the change of parent Company name.

This occurred a couple of years prior. My estimate is during 2016.

It was a minor administrative task which the accountancy firm managed. My recollection is that it was well under $500.

It was a change of name only. No change to directors, shares, bank accounts, how staff were paid, what account that came from.

No other changes at all that i am aware of.

It really was a small admin task that i paid a fee for only.

I understand your person a,b, c but there were no changes at all to that.

As i said in the correspondence, i doubt anybody outside of my office would have been aware. At the time it was so inconsequential that i wouldn’t even have mentioned it to my wife.

Cheers. Glen

[Lead Balloon]

The change of name issue seems to me to be a red herring. It’s not mentioned in the CASA corro, so far I can see.

So far as I can see, the CASA corro was prompted by the issue already discussed at length in this thread: Multiple corporate entities - i.e. separate legal persons - each with “complete control over” their own business, purportedly operating under the authority of just one AOC. That looked and smelt very much like multiple, separate flying schools rather than one flying school operating from multiple bases. Only the latter is permissible under the CA Act.

I’d like to focus on just one entity: MFT. When MFT started its flying training operations, what was the Australian Company Number written on the AOC authorising those operations?

Is that Australian Company Number the same Australian Company Number written on APTA’s AOC? If the answer to that question is ‘no’, that’s the heart of the problem.

I’m not interested in names. I’m just interested in the ACNs.

[glenb]

Lead Balloon

At work without access to the actual number. There was never any change to the ABN, ACN. It was the same one in 2006 and throughout.

[Lead Balloon]

Please don’t worry about responding quickly to any of this, Glen. I don’t want to add any pressure to you, and I may be boxing at shadows.

I realise than an ACN didn’t change. A company’s ACN can’t change. It’s like a human’s DNA. I’m trying to work out to which entity you’re referring and whether that entity held an AOC on 23 October 2018 (the date of CASA’s letter at the Dropbox link).

Are you saying that the MFT entity - whatever its ACN happened to be - was the holder of an AOC with that ACN written on it on 23 October 2018? That would be very surprising if correct, because CASA’s letter mentions MFT as one of the entities which CASA alleged was not operating under the authority of an AOC.

If the MFT entity - whatever its ACN happened to be - was not the holder of an AOC with that ACN written on it on 23 October 2018, was the MFT entity ever the holder of an AOC with that ACN written on it?

[BigPapi]

Originally Posted by glenb

At work without access to the actual number. There was never any change to the ABN, ACN. It was the same one in 2006 and throughout.

So this is saying that APTA and MFT had the same ABN? Would you consider them to be the same company?

[Lead Balloon]

Like names, ABNs are a red herring. ACNs, on the other hand, reveal who’s who in the corporate zoo.

[Paragraph377]

LB is correct, the ACN contains the information of the key person. And under an ACN you can’t have more than one ABN. An entity can only have one ABN, but you can run multiple businesses under the same ABN. I have a couple of businesses that I run this way. So yes, multiple business names can be registered to a single ABN, but only one ABN can be tethered to an ACN.

[Lead Balloon]

Not quite. A company (and a natural person) can have more than one ABN. But a company can have only one ACN.

[Paragraph377]

Originally Posted by Lead Balloon

Not quite. A company (and a natural person) can have more than one ABN. But a company can have only one ACN.

I stand corrected. Yes LB, you are correct..