The ‘Rule Of Law’?
Thread Starter
The ‘Rule Of Law’?
I note that low flying, like rape, is a criminal offence (CAR 157).
In response to suggestions by AOPA, to the effect that CASA was beasting a pilot for low flying allegations which the pilot ‘strenuously denies’, Mr Carmody (then CEO of CASA) said to a Senate Committee on 20 November 2020:
“"That's not what the instruments on his aircraft say, Senator. They say he was at 125'."
Mr Carmody wasn’t in the cockpit of the aircraft or at a console in Centre at the time of the alleged low flying. Indeed, no one from CASA was in the cockpit of the aircraft or at a console in Centre at the time of the alleged low flying. None of them saw the ‘instruments’ to which Mr Carmody referred. Their ‘evidence’ as to what the instruments ‘said’ would be inadmissible hearsay in a prosecution of the pilot for alleged low flying.
Mr Carmody’s opinion about the height of the aircraft would also be inadmissible. Even if he was ‘there’, watching the aircraft fly, his evidence would be confined to the facts - what he saw or heard etc - and not his opinion as to the height of the aircraft.
The readings of instruments are themselves hearsay. (A prosecution for a ‘drink driving’ offence recently collapsed because the end of a fundamentally-relevant 2 hour period was measured in a hospital by reference to a clock on the wall, the accuracy of which on the day in question was not proved.) What someone in Centre saw on his or her screen, sourced from e.g. an SSR transponder or ADS, is also hearsay.
Expert evidence would have to be led as to the accuracy (and inaccuracy) and tolerances and lags etc in the aircraft’s equipment and Centre’s ground equipment, in order for evidence as to what someone in Centre saw on his or her screen to be admissible evidence, in a criminal prosecution, as to the height of the aircraft from which the signals were sent.
Ditto for the GPS altitude recorded in memory in on-board avionics.
Someone standing on e.g. a 500’ hill could give admissible evidence as to the relative position of an aeroplane the person saw fly past. But good luck using that witness’s evidence to prove, beyond reasonable doubt, that the aircraft was within 600 metres horizontally of the person’s location. Easy to prove the height of a location on which a person is standing and whether the aircraft was above or below that location. Not so easy to prove the horizontal distance of a fast moving object from that person’s location.
But why would CASA bother with the hard work of admissible evidence when it can destroy someone administratively? CASA just has to bundle all of the stuff which would be inadmissible or difficult to prove beyond reasonable doubt in criminal proceedings and ask the pilot to show cause why CASA should not find the pilot did fly in breach of CAR 157 and, if that finding were to be made, why the pilot’s licence should not be revoked.
The pilot can refuse to respond or could say: “It just did not happen”, but it is still open to CASA to find that the pilot was low flying in breach of CAR 157 and revoke his or her licence.
The person could, of course, seek review of the revocation decision in the AAT - if the person has a lazy $50K or so lying around. But even with a lazy $50K or so lying around, the person is up against a well-oiled fear-mongering machine.
Chances are it’s game over and flying career over for the person. Even if the person ‘wins’, the money spent and the income lost in the interim are unrecoverable.
Career-ending findings that a person is not a fit and proper person to perform the duties of a particular position are made frequently as a matter of administrative law, absent any finding by a criminal court that the person committed any offence.
Seems odd to me that the ease with which a person’s career can be lawfully destroyed is inversely proportional to the seriousness of the crime alleged against the person.
We should of course be kept safe from low flying pilots (and them from themselves), and that - apparently - is the justification for administrative powers that may lawfully be exercised without meeting the criminal law evidentiary standards and burdens. But shouldn’t we be kept safe from rapists, too, and wouldn’t the supposed justification be valid, with even greater force, in the case of more heinous allegations?
I know with whom I’d prefer my daughter be left alone in a room.
The ‘Rule Of Law’ seems to be a very flexible concept. I suppose it’s because aviation is ‘special’.
In response to suggestions by AOPA, to the effect that CASA was beasting a pilot for low flying allegations which the pilot ‘strenuously denies’, Mr Carmody (then CEO of CASA) said to a Senate Committee on 20 November 2020:
“"That's not what the instruments on his aircraft say, Senator. They say he was at 125'."
Mr Carmody wasn’t in the cockpit of the aircraft or at a console in Centre at the time of the alleged low flying. Indeed, no one from CASA was in the cockpit of the aircraft or at a console in Centre at the time of the alleged low flying. None of them saw the ‘instruments’ to which Mr Carmody referred. Their ‘evidence’ as to what the instruments ‘said’ would be inadmissible hearsay in a prosecution of the pilot for alleged low flying.
Mr Carmody’s opinion about the height of the aircraft would also be inadmissible. Even if he was ‘there’, watching the aircraft fly, his evidence would be confined to the facts - what he saw or heard etc - and not his opinion as to the height of the aircraft.
The readings of instruments are themselves hearsay. (A prosecution for a ‘drink driving’ offence recently collapsed because the end of a fundamentally-relevant 2 hour period was measured in a hospital by reference to a clock on the wall, the accuracy of which on the day in question was not proved.) What someone in Centre saw on his or her screen, sourced from e.g. an SSR transponder or ADS, is also hearsay.
Expert evidence would have to be led as to the accuracy (and inaccuracy) and tolerances and lags etc in the aircraft’s equipment and Centre’s ground equipment, in order for evidence as to what someone in Centre saw on his or her screen to be admissible evidence, in a criminal prosecution, as to the height of the aircraft from which the signals were sent.
Ditto for the GPS altitude recorded in memory in on-board avionics.
Someone standing on e.g. a 500’ hill could give admissible evidence as to the relative position of an aeroplane the person saw fly past. But good luck using that witness’s evidence to prove, beyond reasonable doubt, that the aircraft was within 600 metres horizontally of the person’s location. Easy to prove the height of a location on which a person is standing and whether the aircraft was above or below that location. Not so easy to prove the horizontal distance of a fast moving object from that person’s location.
But why would CASA bother with the hard work of admissible evidence when it can destroy someone administratively? CASA just has to bundle all of the stuff which would be inadmissible or difficult to prove beyond reasonable doubt in criminal proceedings and ask the pilot to show cause why CASA should not find the pilot did fly in breach of CAR 157 and, if that finding were to be made, why the pilot’s licence should not be revoked.
The pilot can refuse to respond or could say: “It just did not happen”, but it is still open to CASA to find that the pilot was low flying in breach of CAR 157 and revoke his or her licence.
The person could, of course, seek review of the revocation decision in the AAT - if the person has a lazy $50K or so lying around. But even with a lazy $50K or so lying around, the person is up against a well-oiled fear-mongering machine.
Chances are it’s game over and flying career over for the person. Even if the person ‘wins’, the money spent and the income lost in the interim are unrecoverable.
Career-ending findings that a person is not a fit and proper person to perform the duties of a particular position are made frequently as a matter of administrative law, absent any finding by a criminal court that the person committed any offence.
Seems odd to me that the ease with which a person’s career can be lawfully destroyed is inversely proportional to the seriousness of the crime alleged against the person.
We should of course be kept safe from low flying pilots (and them from themselves), and that - apparently - is the justification for administrative powers that may lawfully be exercised without meeting the criminal law evidentiary standards and burdens. But shouldn’t we be kept safe from rapists, too, and wouldn’t the supposed justification be valid, with even greater force, in the case of more heinous allegations?
I know with whom I’d prefer my daughter be left alone in a room.
The ‘Rule Of Law’ seems to be a very flexible concept. I suppose it’s because aviation is ‘special’.
Last edited by Lead Balloon; 14th Mar 2021 at 21:57. Reason: To add the precise quote of what Mr Carmody said
Paging Sunfish.
Institute of Public Affairs recently put out A major article on Regulatory “Dark Matter”. About the red tape strangling this country.
How unaccountable regulators subvert democracy by imposing red tape without transparency’ Kurt Wallace.
‘When rules can be made by unelected bureaucrats, there are perverse incentives for regulatory expansion.
Thi s institutional structure allows bureaucrats to expand the power and influence of their agency without any direct democratic accountability’
How very CASA. And the national industry of Aviation as it now is, shows clearly the destructive results of that.
RIP GA.
How unaccountable regulators subvert democracy by imposing red tape without transparency’ Kurt Wallace.
‘When rules can be made by unelected bureaucrats, there are perverse incentives for regulatory expansion.
Thi s institutional structure allows bureaucrats to expand the power and influence of their agency without any direct democratic accountability’
How very CASA. And the national industry of Aviation as it now is, shows clearly the destructive results of that.
RIP GA.
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This organisation has got itself completely out of control . We have a situation developing at my home airport which has to be experienced to be believed. One of our members recently built a Sonex jet . It can do 250 kts and makes a noise which is guaranteed to get you attention. The aircraft is sensitive in pitch and being a turbine is subject to the usual lag. As part of the testing he did some missed approaches over the runway to determine the correct power settings for the approach. Unfortunately it appears one of our fellow aviators I’m sad to say took umbrage and reported him to CASA with an allegation that he “flew along the runway at 20 feet blowing smoke. “ There was initially a friendly phone call from a CASA investigator which was followed up by the most belligerent ,draconian and digusting letter which alleged inter alia low flying , flying without a valid CofA (completely false) and failure to enter defects on the Maintenance Release (also false)Two years prison and a $5000 fine were also mentioned.
With this type of behaviour from CASA is it any wonder we are where we are?
With this type of behaviour from CASA is it any wonder we are where we are?
I heard that there was more to this story. Why do you think the maintenance release would be mentioned by CASA if what you’ve said above is the entire story?
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Some time after the initial complaint he had an undercarriage leg collapse on landing and took some time to assess the damage. So what more do you know ? Do you work for CASA?
You can’t just pick and choose your facts to make your story sound good and blame the regulator.
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Far from being the big gotcha moment you seem to want to make it , the accident happened about two months after the complaint of low flying . Compared with a low flying allegation I would have thought failure to make an endorsement on a Maintenance Release would be fairly minor. Obviously not to CASA though and it will certainly be very interesting to what action they take when they have finished their investigation into all of the matters they have raised .
There is obviously even more to it than you let on, because how would CASA have even known that the MR was clean?
They have obviously investigated and requested a copy of the MR (amongst other information) and then taken appropriate action.
Your assertion that the pilot did a couple of “necessary” fly-by’s and CASA simply sent a letter with threats regarding the MR are factually incorrect and are nothing more than aero club bar talk.
They have obviously investigated and requested a copy of the MR (amongst other information) and then taken appropriate action.
Your assertion that the pilot did a couple of “necessary” fly-by’s and CASA simply sent a letter with threats regarding the MR are factually incorrect and are nothing more than aero club bar talk.
Whatever the facts if the Sonex...it’s the CAsA heavy punitive and threatening approach that is the problem.
Are CAsA personnel Polismen or Compliance Officers for checking the box ticks. ?
And relating to the industry in a civil manner to deal with ‘safety ‘ issues. Unfortunately not.
Their mind set is toPUNISH, however trivial yr indiscretionl.
And if they take a dislike to some person who may answer back or argue the point...lookout.!
An ex policeman, ( a de-frocked ?Snr Sgt NSW force, mentioned in NSW Hansard regarding NSW Police Boys Clubs, re missing property, money and vehicles...and maybe he,s not guilty of anything) gets a job with CAsA.
Doesn’t say much for HR due diligence in Non Aviation House.
Two weeks later he,s sent on an investigation...not yet certified as aPart 111Investiagotor under the Act section
Obviously well versed in the arts of verballing , he writes up a Statement for a LAME to sign. It contains gross errors of fact.
The assessment of this “investigator” by the LAME and I quote as noted..” Ex pig, new kid on the CAsA block, didn’t know what an MR is or an AD or what the aircraft he was to photograph looked like”.
I got an aggressive call from this person asking for an interview, but blaming me that the issue would now be going to court because I refused to pay the penalty notice fine. I wasn’t guilty as accused.
“If it’s off to court you must have the required info already so why do you need a statement from me....as much as you don’t like it I have a right to remain silent.” That pissed him off and I hung up soon after.
His Statement re the call and “investigation” to be used in Court was a litany of lies.
In the wash up, the court case went tits-up, and one AWI and the ‘ investigator’ were out the door.
By the protective perversions of Smart Aleck, Carmody and co the other 2 AWI survived to do further buggery another day.
16 Furzer St is NOT the place to go for Justice and Due Process.
Its aSh*t Show of the 1st magnitude.
Are CAsA personnel Polismen or Compliance Officers for checking the box ticks. ?
And relating to the industry in a civil manner to deal with ‘safety ‘ issues. Unfortunately not.
Their mind set is toPUNISH, however trivial yr indiscretionl.
And if they take a dislike to some person who may answer back or argue the point...lookout.!
An ex policeman, ( a de-frocked ?Snr Sgt NSW force, mentioned in NSW Hansard regarding NSW Police Boys Clubs, re missing property, money and vehicles...and maybe he,s not guilty of anything) gets a job with CAsA.
Doesn’t say much for HR due diligence in Non Aviation House.
Two weeks later he,s sent on an investigation...not yet certified as aPart 111Investiagotor under the Act section
Obviously well versed in the arts of verballing , he writes up a Statement for a LAME to sign. It contains gross errors of fact.
The assessment of this “investigator” by the LAME and I quote as noted..” Ex pig, new kid on the CAsA block, didn’t know what an MR is or an AD or what the aircraft he was to photograph looked like”.
I got an aggressive call from this person asking for an interview, but blaming me that the issue would now be going to court because I refused to pay the penalty notice fine. I wasn’t guilty as accused.
“If it’s off to court you must have the required info already so why do you need a statement from me....as much as you don’t like it I have a right to remain silent.” That pissed him off and I hung up soon after.
His Statement re the call and “investigation” to be used in Court was a litany of lies.
In the wash up, the court case went tits-up, and one AWI and the ‘ investigator’ were out the door.
By the protective perversions of Smart Aleck, Carmody and co the other 2 AWI survived to do further buggery another day.
16 Furzer St is NOT the place to go for Justice and Due Process.
Its aSh*t Show of the 1st magnitude.
If only CAsA prosecuted those "real" criminals with the same fervour they go after "perceived" criminals.
Take, for example, the Upper Hunter Shire Council and their new, yew-bewdt, multi-million-dollar Scone Airport upgrade. Tore up the old runway lights, installed new LED's, new wiring, new PAPI, new everything. But then they didn't have it tied into the PAL, so they just left it switched on at night and put that notification in the ERSA with a NOTAM to say the new lights weren't flight-checked yet. No problem there, you'd think, and you'd be right. ERSA says "Lights on HN" and the lights are on HN. All good.
Except then they turned the PAL on didn't they. And haven't listed the PAL frequency in their AIP entry, nor is there a NOTAM to say "Hey, the lights we said would be on, now aren't on and as we won't tell you the PAL frequency, so you'll need NVG's to find the airfield, good luck!" so any poor pilot rocking up to Scone after last light based on data contained in the (incorrect) ERSA entry now needs to hold, pending someone turning them on, or divert elsewhere.
Have Council been told of that risk? Yep. Is there a NOTAM out? Nope.
Anyone would think that is a clear breach of MOS139, but will CAsA do anything? I've got $10 saying "Nope!"
Take, for example, the Upper Hunter Shire Council and their new, yew-bewdt, multi-million-dollar Scone Airport upgrade. Tore up the old runway lights, installed new LED's, new wiring, new PAPI, new everything. But then they didn't have it tied into the PAL, so they just left it switched on at night and put that notification in the ERSA with a NOTAM to say the new lights weren't flight-checked yet. No problem there, you'd think, and you'd be right. ERSA says "Lights on HN" and the lights are on HN. All good.
Except then they turned the PAL on didn't they. And haven't listed the PAL frequency in their AIP entry, nor is there a NOTAM to say "Hey, the lights we said would be on, now aren't on and as we won't tell you the PAL frequency, so you'll need NVG's to find the airfield, good luck!" so any poor pilot rocking up to Scone after last light based on data contained in the (incorrect) ERSA entry now needs to hold, pending someone turning them on, or divert elsewhere.
Have Council been told of that risk? Yep. Is there a NOTAM out? Nope.
Anyone would think that is a clear breach of MOS139, but will CAsA do anything? I've got $10 saying "Nope!"
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Its ironic that the federal government is about to subsidise regional airlines to provide half price airfares to the tune of 1.5 billion dollars of our grandchildren's money, when a simpler more cost effective and safer solution would be to clean out CASA and embrace the safest regulatory suite in the world, the US FAR's.
Under FAR's it's almost half the hourly cost to operate an aircraft compared to Australia. how stupid are we?
Under FAR's it's almost half the hourly cost to operate an aircraft compared to Australia. how stupid are we?
I recently wrote to the ADF, via the AVSef website, about the declaration of Restricted Areas outside of Australian territorial waters (12NM Limit) in regard to Exercise Talisman Sabre. The gist of my argument is in this extract:
"Australia, in the light of Chinese claims in the South China Sea, needs to clarify our own position in relation to the exclusion of aircraft from airspace outside of “Australian Territory”. I use that term specifically because it is the terminology used in Australian airspace legislation and I have highlighted the term wherever it is used in the quotes below.
I contend that having studied the legislation, the declaration of Restricted Areas in regard to this exercise, outside of “Australian Territory”, is contrary to the Airspace Act 2007, the Airspace Regulations 2007, and the Australian Airspace Policy Statement 2018. It is, therefore, arguably, illegal under Australian law and the Chicago Convention to which Australia is a signatory."
and,
"Please clarify, for AVSef members, the legal basis for the establishment of Restricted Areas outside of “Australian Territory” as defined in Australian airspace regulation."
I have not received a written reply from the ADF but did get a telephone call from a CASA officer who agreed with my conclusion but stated that CASA does not intend to comply with the law because, and now I am paraphrasing his words, they have done it lots of times before, Australia has many R Areas outside 12 NM, everyone else in the world does it, the ADF does not like flying "due regard" (recognised by ICAO) because it is too dangerous!
So, the only conclusion an ordinary citizen can come to, is that the law only applies when CASA wants it to, and never to CASA or the ADF.........
"Australia, in the light of Chinese claims in the South China Sea, needs to clarify our own position in relation to the exclusion of aircraft from airspace outside of “Australian Territory”. I use that term specifically because it is the terminology used in Australian airspace legislation and I have highlighted the term wherever it is used in the quotes below.
I contend that having studied the legislation, the declaration of Restricted Areas in regard to this exercise, outside of “Australian Territory”, is contrary to the Airspace Act 2007, the Airspace Regulations 2007, and the Australian Airspace Policy Statement 2018. It is, therefore, arguably, illegal under Australian law and the Chicago Convention to which Australia is a signatory."
and,
"Please clarify, for AVSef members, the legal basis for the establishment of Restricted Areas outside of “Australian Territory” as defined in Australian airspace regulation."
I have not received a written reply from the ADF but did get a telephone call from a CASA officer who agreed with my conclusion but stated that CASA does not intend to comply with the law because, and now I am paraphrasing his words, they have done it lots of times before, Australia has many R Areas outside 12 NM, everyone else in the world does it, the ADF does not like flying "due regard" (recognised by ICAO) because it is too dangerous!
So, the only conclusion an ordinary citizen can come to, is that the law only applies when CASA wants it to, and never to CASA or the ADF.........
Thread Starter
Extra-territorial operation of laws is complicated. I think you’ll find that, as a matter of principle, Australian airspace declarations may validly apply, extra-territorially, to Australians and Australian aircraft. However, if the terms of the airspace legislation confines the declaration powers to airspace within Australian territory, those powers cannot validly declare airspace beyond Australian territory.
If the ADF thinks other countries recognise Romeos beyond 12nms of the baseline as legally binding, the ADF is operating in blissful ignorance. I doubt even the ADF is that naive.
If the ADF thinks other countries recognise Romeos beyond 12nms of the baseline as legally binding, the ADF is operating in blissful ignorance. I doubt even the ADF is that naive.
Thread Starter
And let’s not forget another of Mr Carmody’s breathtaking assertions during the hearing on 20 Nov 2020:
Yep. Innocent until proven guilty alright.
[Glen Buckley] has assaulted my staff, he has stalked my staff.
I recently wrote to the ADF, via the AVSef website, about the declaration of Restricted Areas outside of Australian territorial waters (12NM Limit) in regard to Exercise Talisman Sabre. The gist of my argument is in this extract:
"Australia, in the light of Chinese claims in the South China Sea, needs to clarify our own position in relation to the exclusion of aircraft from airspace outside of “Australian Territory”. I use that term specifically because it is the terminology used in Australian airspace legislation and I have highlighted the term wherever it is used in the quotes below.
I contend that having studied the legislation, the declaration of Restricted Areas in regard to this exercise, outside of “Australian Territory”, is contrary to the Airspace Act 2007, the Airspace Regulations 2007, and the Australian Airspace Policy Statement 2018. It is, therefore, arguably, illegal under Australian law and the Chicago Convention to which Australia is a signatory."
and,
"Please clarify, for AVSef members, the legal basis for the establishment of Restricted Areas outside of “Australian Territory” as defined in Australian airspace regulation."
I have not received a written reply from the ADF but did get a telephone call from a CASA officer who agreed with my conclusion but stated that CASA does not intend to comply with the law because, and now I am paraphrasing his words, they have done it lots of times before, Australia has many R Areas outside 12 NM, everyone else in the world does it, the ADF does not like flying "due regard" (recognised by ICAO) because it is too dangerous!
So, the only conclusion an ordinary citizen can come to, is that the law only applies when CASA wants it to, and never to CASA or the ADF.........
"Australia, in the light of Chinese claims in the South China Sea, needs to clarify our own position in relation to the exclusion of aircraft from airspace outside of “Australian Territory”. I use that term specifically because it is the terminology used in Australian airspace legislation and I have highlighted the term wherever it is used in the quotes below.
I contend that having studied the legislation, the declaration of Restricted Areas in regard to this exercise, outside of “Australian Territory”, is contrary to the Airspace Act 2007, the Airspace Regulations 2007, and the Australian Airspace Policy Statement 2018. It is, therefore, arguably, illegal under Australian law and the Chicago Convention to which Australia is a signatory."
and,
"Please clarify, for AVSef members, the legal basis for the establishment of Restricted Areas outside of “Australian Territory” as defined in Australian airspace regulation."
I have not received a written reply from the ADF but did get a telephone call from a CASA officer who agreed with my conclusion but stated that CASA does not intend to comply with the law because, and now I am paraphrasing his words, they have done it lots of times before, Australia has many R Areas outside 12 NM, everyone else in the world does it, the ADF does not like flying "due regard" (recognised by ICAO) because it is too dangerous!
So, the only conclusion an ordinary citizen can come to, is that the law only applies when CASA wants it to, and never to CASA or the ADF.........
I have now received a reply from the RAAF concerning my point about the illegality of R Areas outside of Australian territorial waters.
It appears that CASA has admitted the problem exists (they are the airspace authority, not the ADF); the letter drew my attention to:
"CASA 26/21 – Direction – Australian Aircraft and Foreign Registered Aircraft in Australian-administered Airspace Instrument 2021 and the announcement of Project AS 21/01 - Establishment of offshore danger areas, military exercise areas, and military training areas."
Please have a read of the Direction particularly if you have an Australian AOC. I don't so I cannot assess whether the new Direction is also illegal although I doubt it because legal counsel will have been involved.
CASA talks about the declaration as being "unenforceable" which I guess is public service speak for illegal as highlighted in my previous posts.
I realise that the new DAS has not yet taken up her post, but perhaps the acting managers are clearing the decks so she can find a responsive CASA.
It is indeed good to have win.....
It appears that CASA has admitted the problem exists (they are the airspace authority, not the ADF); the letter drew my attention to:
"CASA 26/21 – Direction – Australian Aircraft and Foreign Registered Aircraft in Australian-administered Airspace Instrument 2021 and the announcement of Project AS 21/01 - Establishment of offshore danger areas, military exercise areas, and military training areas."
Please have a read of the Direction particularly if you have an Australian AOC. I don't so I cannot assess whether the new Direction is also illegal although I doubt it because legal counsel will have been involved.
CASA talks about the declaration as being "unenforceable" which I guess is public service speak for illegal as highlighted in my previous posts.
I realise that the new DAS has not yet taken up her post, but perhaps the acting managers are clearing the decks so she can find a responsive CASA.
It is indeed good to have win.....
If the ADF thinks other countries recognise Romeos beyond 12nms of the baseline as legally binding, the ADF is operating in blissful ignorance