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casa and the Show Cause Notice

#casa and the Show Cause Notice
The following is a public discussion from #pprune, which has been “shut-down” by the #pprune moderators. But I am sure this issues needs airing, particularly at this time when internal pressures on staff are likely to result in FOI’s or AWI’s turning rogue on pilots and maintenance personnel.
I am hoping this does not happen, but a backlash from Skidmore and the #casa Board making the necessary changes to implement the #asrr recommendations is likely, given the previous #casa history.
Roll on a strong #casa Board to fully implement the #asrr review.

 

19th Apr 2012, 19:23   #1 (permalink)
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casa and the Show Cause Notice

More reading for you.

One of the most iniquitous actions of the casa machine and the 4.55 pm Friday action is the Show Cause notice.

The following was published at:

If ever you get a Show Cause letter from CASA

and bears some reading.

Quote:
IF EVER YOU GET A ‘SHOW CAUSE’ LETTER FROM CASA ….

CAR 269 (1) Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or an authority, vary, suspend or cancel the licence, certificate or authority where CASA is satisfied that one or more of the following grounds exists, namely:

(a) that the holder of the licence, certificate or authority has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State;

CASA frequently sends out what are called “Show Cause” letters. These letters invite you to show cause why your license should not be cancelled under CAR 269. They usually allege that you have broken the law. The material below only applies to Show Cause letters which make that allegation.


A “Show Cause” letter which alleges that you have violated the law is a horrible trap. If you respond to that letter you are like a small dog which puts itself at the mercy of a big dog by rolling on its back and offering the big dog its neck. The small dog hopes that this act of submission will cause the big dog to act in a chivalrous fashion and walk off. For the small dog, that technique usually works. But if you are up against CASA, your chances are not nearly as good as the small dog’s.


If CASA alleges that you have broken the law, that allegation should be dealt with in a Court. Our Court systems have been developed over many centuries to guard us from unfair punishment.

PRECIOUS SAFEGUARDS YOU THROW AWAY BY PLAYING THE ‘SHOW CAUSE’ GAME

If you engage in the Show Cause process you throw away all those very precious safeguards

* You throw away the right to require that the case against you be proven beyond a reasonable doubt;
* You throw away the right to know, and challenge, the evidence against you;
* You throw away the right to know the identities of your accusers;
* You throw away the right for you or your lawyer to cross-examine your accuser(s) and other witnesses;
* You throw away the right of appeal to a higher Court;

Should CASA ever send me a “Show Cause” notice alleging that I have violated a law I will respond with “I have not been convicted of any of the breaches of the law that you allege.

That is the cause I show.”.

Not one word more.

Every month I get letters from people whose licenses have been cancelled by CASA. The sequence of events is always the same:

· The victim receives a “show cause” letter alleging that he/she has violated a whole lot of Regulations. The victim is invited to send a written response and to attend an “informal conference”.
· Sometimes the victim attends the “informal conference”, sometimes not. If he/she does, he always comes away saying “what a misnomer” after being grilled and tape-recorded.
· The victim then writes a response. In the course of the response he/she usually says things like “it was only a technical breach” or “I did not realise I was not allowed to change the mainwheel tyres” or “there was no NEED for a forecast because I was only going 20 miles and I had rung the person at the other end”.
· CASA then decides to cancel or suspend the victim’s license, or to do nothing.

Most often the decision goes against the victim. CASA then sends a letter cancelling or suspending his/her license. This letter points out that the victim has the right of appeal to the AAT.

THERE IS NO EFFECTIVE RIGHT OF APPEAL IF CASA CANCELS YOUR LICENCE


* The victim then wastes his time and money appealing to the AAT. Appeals to the AAT against license suspensions or cancellations never succeed. They are a pointless routine which occasionally makes a victim feel better, because he has had his day in Court, but that is all.

If you are going to go to Court against CASA in response to a “Show Cause” letter, I recommend that you make that decision at the outset when you still have all our hard-won safeguards on your side. It is silly to throw away all your safeguards and then look to a tribunal for help. If you are going to fight, fight while you are strong – not after you have thrown away all your weapons.
If you decide to go down the “show cause” route, and CASA cancels your license, don’t throw away your money going to the AAT. Just take up another occupation (if you rely on aviation for your living) or another hobby (if you are a private pilot) and get on with your life.

If you are going to fight, consult a lawyer immediately. Remember that you need a CRIMINAL LAWYER – the family solicitor, or the best commercial lawyer from the most expensive firm in the city, is not the right person for this job. Nor is an aviation lawyer. You have been accused of a crime and you need a criminal lawyer. Subject to your lawyer’s advice, respond to the “Show Cause” notice by simply saying that you have not been convicted of any of the alleged breaches of the law, and that is the cause you show. Do not enter into any verbal discussions or attend any meetings no matter how “informal” unless your lawyer advises you to. If your lawyer does advise you to roll over and show your neck, get a second opinion from another lawyer before you do.

Once you have received a “show cause” letter from CASA, you are playing for keeps. If you roll over and show your neck, there is better than a 50-50 chance that CASA will cancel or suspend your license.

If CASA still goes ahead and cancels your license, do not appeal to the AAT unless you have huge amounts of spare money, lots of spare time, and nothing else in your life. If your lawyer cannot work out a way to get you into a real Court (such as the Federal Court, under the ADJR Act), don’t waste your resources on the AAT. Just accept the fact you have lost your license and get on with your life.

A PRACTICAL EXAMPLE OF HOW THIS CAN GO WRONG

As an example, assume that you irritate a CASA officer, who then decides to show you who is boss. He demands that you produce your logbook for inspection, intending to go through it in the hope of finding evidence of breaches. You refuse to produce your logbook because you fear that it will indeed reveal some inadvertent breaches.

CASA then says you have breached CAR 5.56 and cancels your license under CAR 269(1)(a). You have clearly breached CAR 1988 5.56 if you read the words of that regulation alone. But there is a legal principle that a person cannot be compelled to incriminate himself. Accordingly, if your logbook contains information which may tend to incriminate you, you may not have to produce it in spite of CAR 5.56.

If you make that argument in a Court before a judge, CASA will argue against it but you are likely to win. However if you make that argument in a ‘Show Cause’ procedure, where CASA is both prosecutor and judge, you are certain to lose.

WHY CASA SOMETIMES PROSECUTES AND SOMETIMES USES ‘SHOW CAUSE’

It is always open to CASA to initiate a prosecution against a person whom CASA believes has broken the law. If the person is convicted, the Court can then impose an “exclusion period” which has the same effect as cancelling or suspending your license.

That is the fair way of doing things.

Our forefathers struggled for centuries to gain and retain genuine legal safeguards against heavy-handed treatment by too-powerful bureaucrats. Don’t throw those safeguards away by allowing yourself to be tried, convicted, and sentenced by CASA’s bureaucrats.

When CASA believes that a person has violated the law, CASA chooses whether to be fair and prosecute the person or be unfair and use the “show cause” procedure. You do not have to be Al Einstein to work out that the cases where the “show cause” procedure is used tend to be those where the evidence is not strong enough to get a conviction, or where a Court is unlikely to impose an “exclusion period” if the person is found guilty.

What’s more, CASA can do BOTH – cancel your license under the “Show Cause” procedure, and then prosecute you. If you engage in the “Show Cause” procedure, you will inevitably give CASA a whole lot of evidence it did not have beforehand!

Well casa – Answers

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Old 19th Apr 2012, 19:43   #2 (permalink)
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Well I wondered what happened to this thread. Nice to see it replaced.

At some risk, may I suggest this be part of the pre flight regeime with the aide memoir at hand for such emergencies.

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Old 4th May 2012, 17:41   #3 (permalink)
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From:

Terms of Reference
CIVIL AND ADMINISTRATIVE PENALTIES
Protection of the public

http://www.alrc.gov.au/sites/default…tions/DP65.pdf

Quote:
3.18 The majority of circumstances in which non-retributive penalties are imposed do not involve general restrictions of liberty, but prevent a person from doing specific activities through removal or restriction of a licence, or banning them from engaging in certain activities in the future. The justification for the action is normally a form of protection of the public. Where the regulator aims to protect public safety (for example, the Civil Aviation Safety Authority)

The question is:

Is a “show cause” notice safety, or is it a restriction of trade???

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Old 4th May 2012, 18:19   #4 (permalink)

<b< div=””>

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Seems the same as FAA, when a pilot/mechanic breaks the rules their license is in jeopardy.
I prefer Norther Africa, pay some dollars and problem disappears
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Old 4th May 2012, 18:21   #5 (permalink)
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None of the above airy, its really about FOI testosterone replacement
therapy, or how to win a promotion without really trying, safety dosnt enter into it.
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Old 4th May 2012, 19:17   #6 (permalink)
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Quite possibly the biggest eye opener I’ve found on PPRuNe.
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Old 4th May 2012, 21:03   #7 (permalink)
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Quote:
I prefer Norther Africa, pay some dollars and problem disappears

Unfortunately you will be surprised at the number of real and imaginary problems that keep appearing, all requiring $$$ to sort out.

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Old 4th May 2012, 22:54   #8 (permalink)
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Quote:
Originally Posted by waren9 View Post
Quite possibly the biggest eye opener I’ve found on PPRuNe.
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Old 5th May 2012, 17:22   #9 (permalink)
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Thanks Andy, that was a brilliant clip.
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Old 6th May 2012, 10:23   #10 (permalink)
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casa and the Courts – “Watch out”

From “The Division of the Commission constituted under the Australian Law Reform Commission Act 1996 (Cth)”in 2001, reporting to Parliament in November 2002 under the Chair of:

President
– Professor David Weisbrot
Deputy President – Dr Kathryn Cronin (to June 2001)

Members

Ian Davis (full-time Commissioner from 13 June 2000)
Brian Opeskin (full-time Commissioner from 31 July 2000)
Professor Anne Finlay (full-time Commissioner from 12 November 2001)
Justice Ian Coleman (part-time Commissioner)
Justice John von Doussa (part-time Commissioner)
Hank Spier (part-time Commissioner from September 2000)
Justice Mark Weinberg (part-time Commissioner)

say in part:

Quote:
Proposals for model legislation

Developing a model scheme

12.62 Existing federal infringement notice schemes are discussed at para 12.29–

12.47. Fox has suggested the development of uniform legislation to apply nationally across federal, state and territory jurisdictions.1612

He considered that a model scheme should have the following features:

It should apply only to summary offences;
Payment of the penalty should fully expiate the offence (that is, no conviction should be recorded);
Associated loss of benefits such as licence suspension or demerit points may apply but no suspension or cancellation should exceed six months;;
The maximum penalty payable should not exceed $500 or one-quarter of the maximum statutory penalty if the matter is dealt with by a court;
The scheme should be administered by the public officials responsible for enforcing the legislation which creates the offence;
The discretion to issue a warning in less serious cases or to take immediate court action in more serious cases should be available, such discretion to be exercised in accordance with published guidelines;
Infringement notices should be written in Plain English with foreign language warnings;
The infringement notice must clearly state that contesting the offence in court is an option;
The infringement notice should give the person the opportunity to bring factual matters to the attention of the agency issuing the notice, with the aim of having the notice withdrawn; and
If a court hears the matter, it should be heard by way of a ‘hand-up brief’.

Now that tells us how the general direction for regulation, penalties and “show cause” is to move.

Further, it makes some very specific requirements, putting the onus, onto the regulator to specific ways of doing things of a legal nature.

Question is why don’t casa behave this way now??

Read ON:

Quote:
12.64 The ALRC considers that there is a need for consistency across federal infringement notice schemes and suggests that development of a model federal scheme is appropriate. The features of a proposed federal scheme are outlined below:
(a) It should apply only to strict or absolute liability offences of a ‘less serious nature’ the meaning of ‘less serious nature’ would need to be defined by legislation. It is inappropriate to issue an infringement notice for an offence that requires any detailed forensic analysis, particularly of a state of mind.

1613 Australian Law Reform Commission, Multiculturalism and the Law, ALRC 57 (1992), Australian Law
Reform Commission, Sydney, para 9.28.

(b) The amount payable under an infringement notice should not exceed one fifth or 20% of the maximum penalty which might be imposed if the matter is dealt with by a court. An alternative would be to specify a set penalty in the legislation authorising the issue of the infringement notice. The amount of the specified penalty should be sufficiently lower than the maximum amount likely to be imposed by the court to make the payment of that amount attractive to the alleged offender.
(c) Before an infringement notice may be issued, the regulator must have ‘reasonable grounds to believe’ that the alleged offence has been committed.
(d) Guidelines on the use of infringement notices by the regulator should be issued in the form of a disallowable instrument to permit parliamentary scrutiny and published in locations that are easily accessible to the public.
(e) Only one notice should be issued for each alleged offence. If the conduct might amount to several different offences, the regulator must choose which offence it will base the infringement notice on.
(f) The regulator should have the discretion to give a warning rather than issue an infringement notice.
(g) The regulator should have the discretion to initiate proceedings rather than issue an infringement notice.
(h) There should be a 12 month time limit after the occurrence of the alleged offence in which an infringement notice may be issued.
(i) The rights of the alleged offender should be clearly set out in the infringement notice in Plain English these must include, in particular, the right to elect to contest liability in court; the right to apply for withdrawal of the notice;
and the effect of payment (that is, that it acts as a bar to proceedings being instituted for prosecution of the alleged offence).
(j) The payment of an amount by a person under an infringement notice should not be taken for any purpose to be an admission by that person of any liability for the alleged commission of the offence.
(k) The consequence of failing to pay an amount set out in an infringement notice should be prosecution for the alleged offence and not an alternative or substitute penalty such as licence suspension or cancellation. The imposition of licence variations, demerit points or similar on-going penalties would have an effect similar to that of keeping an infringement notice history of an 418 offender in that the expiation of the offence is illusory and the record of it persists in one way or another.
(l) The alleged offender should have the right to seek to have the infringement notice withdrawn by presenting material to the issuing authority demonstrating that the factual basis on which the notice was issued was erroneous. If substantiated, this would nullify the whole process. However, there should not be any scope for the alleged offender to seek a variation of the penalty, as this would place the regulator in the position of a court.1614
(m) The payment of an amount by a person under an infringement notice should prevent any record of the alleged offence being kept by the regulator. On balance, the ALRC’s provisional view is that the coercive power of an infringement notice to persuade an alleged offender to pay even if liability is in doubt because of the costs of contesting the matter in court is such that to maintain any record of the issue and outcome of infringement notices is unfair.


I believe this gives direction to casa on how to behave.

The question is, why do casa behave the way that they do??

More reading at:

http://www.alrc.gov.au/sites/default…tions/DP65.pdf

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Old 6th May 2012, 14:14   #11 (permalink)
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Why does a dog lick its Balls??

BECAUSE IT CAN!!

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Old 6th May 2012, 17:51   #12 (permalink)
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Andt RR,
Unfortunately, Australians have no constitutional protection similar to the Fifth Amendment to the US Constitution.

The Australian common law rights against self incrimination are very limited, and statute law trumps the common law, unless it is found to be unconstitutional by the High Court of Australia.

Indeed, there is a large body of law here, both State and Commonwealth, where you can be compelled to answer, including being forced to incriminate yourself, with attached severe penalties for non-compliance.

Sadly, the whole US ethos of “freedom” has little support in Australia, by and large we seem to be very accepting and tolerant of, or even demanding of, levels of Government imposed legislated control, that would be anathema in the US.

Indeed, all too many Australians seem to feel uncomfortable with the very idea of the level of constitutionally protected personal freedom that is taken for granted in the US. The general approach to defamation in the US is one example, if you are any kind of a public figure, politician or similar, you just have to wear the most outrageous slurs. The recent inquiry into media content here would never happen in the US, the First Amendment guarantees of freedom of speech is taken very literally by the US High Court.

Further, “they wouldn’t have made those accusations if they weren’t true” or “where there’s smoke, there’s fire” are very common mindsets, particularly in aviation, were practitioners are very ready to believe their worst about their peers.

Having said all that, the “say nothing” advice is good, and police or other “trained investigators” here use all the same techniques as shown in the video, in pursuit of successful prosecutions, don’t give them a free kick.

There is a famous case, years ago, of a DH 82 very publicly flying under the Sydney Harbour Bridge. DCA ( I think it was at the time) demanded that the pilot of the aircraft admit he or she was the pilot. “Nobody” saw who climbed into the aircraft, or who climbed out, so DCA had no “independent witness” proof of the identity of the pilot, only a potential admission by the pilot. There was no dispute over the identity of the aircraft, or its owner.

The alleged pilot said nothing —- and I mean nothing. He or she did not deny they were the pilot, so they could never be accused of giving false evidence, they just said nothing, zilch, naught. DCA never succeeded in establishing the identity of the pilot, and the matter was finally allowed to die.

As far as “air safety” is concerned in Australia, “air safety” is such a holy cow that even “proof beyond a reasonable doubt” all too often produces “facts” that would only be accepted in an aviation environment as “evidence”.

Tootle pip!!

PS: One of the sad things I come across, from time to time, is “somebody” being so keen to assist CASA investigators, to try and show what reasonable persons they are, that they wind up admitting guilt to things that CASA didn’t know about. Not keeping it zipped can prove to be very expensive — don’t back your chances in a field where you are a naive novice.

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Old 6th May 2012, 18:58   #13 (permalink)
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I agree with Leaddie’s point about the cultural differences between the USA and Australia.

In the USA, government is grudgingly tolerated and kept under close rein by a populace whose presumptive position is that any interference with an individual’s freedom is bad. Government in the USA is a creation of the populace and there to facilitate the aspirations of the populace. Government is required to stay in its place, like a pet dog. And, like a pet dog, government in the USA occasionally tries to expand its territory and take a higher status in the pack, in which case it gets a wet newspaper across the nose.

In Australia, government came first, and still comes first. The population comprises subjects of the monarch who are, as subjects, presumptively to be controlled. The government has powers for the peace, order and good government ‘of’ Australians, not ‘for’ Australians. Australians are the pet dogs, choosing between temporary kennel managers. The choice fools them into believing they’re ‘free’.

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Old 6th May 2012, 19:43   #14 (permalink)
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Cough!!!!..splutter…!!..jesus Creamie you could have warned us!!
nearly chocked on my red,..you actually AGREE with leadie???
Na…couldnt be surely its an aberration??
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Old 6th May 2012, 20:12   #15 (permalink)
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Another odd facet of the Australian psyche is the inability to separate an opinion from the person expressing the opinion.

If you’ve actually read, objectively, the opinions I’ve expressed on PPRuNe, you’d see that I occasionally agree with the opinion expressed by Leaddie, and I occasionally disagree.

The USA also does ‘debate’ better than Australia. Much better.

These fora are supposed to demonstrate and promote substance over personality.

For which kennel managers do you vote, Thorn Bird?

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Old 6th May 2012, 21:56   #16 (permalink)
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While I don’t disagree with anything you have written, Leadie, I do suggest relying on any law to defend yourself is fraught with danger and usually doomed from the beginning. A better approach is to slow and frustrate the ‘legal’ process as much as is practicable until the political will to prosecute has been exhausted. Keeping mum about everything you can do is merely the first and, possibly the best weapon you have.
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Old 7th May 2012, 19:58   #17 (permalink)
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Last time I was “ramped” it took a considerable amount of self restraint to prevent me becoming the defendent in an assault case. Talking to idiots simply educates them.

Next time I will claim I am being “stalked”.

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Old 7th May 2012, 19:59   #18 (permalink)
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Up-into-the-air: You completely misunderstand the functions and powers of the ALRC. Please do some more research.

All: The video at RR’s link is interesting, and instructive, for a number of reasons, one of which is the manifestation of one cultural similarity between the USA and Australia. Those of you who were watching and listening to both speakers, closely, would have noticed to whom they attributed much of the propensity to misconstrue the position and evidence of even the innocent defendants. It’s a little like the propensity of the ‘industry’ in Australia.

Mirrors ready. Mirrors up.

And don’t confuse criminal actions and administrative actions.

If someone receives a ‘show cause’ notice in Australia, the recipient is, like anyone in the USA, perfectly entitled to say nothing. But the regulator in Australia is also perfectly entitled to proceed to make an administrative decision, with adverse affects for the recipient of the ‘show cause’ notice’, despite silence from the recipient.

For example, if the Australian regulator sends a notice asking the recipient to show cause as to why the regulator should not cancel the recipient’s pilot’s licence on the ground that the recipient has breached the direction requiring specified tolerances from Class C or E or Restricted airspace to be applied to the intended flight path of aircraft of which the recipient was PIC, and the recipient says nothing in response, the regulator is entitled to cancel the licence provided the regulator finds, as a matter of fact and despite silence from the PIC and an absence of a successful prosecution for the ‘offences’, that the breaches occurred.

Now, while everyone’s spitting their wine, whiskey, coffee, tea, cool-aid or medication across the room, I’d suggest grabbing that mirror again.

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Old 7th May 2012, 20:38   #19 (permalink)
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Quote:
Originally Posted by Creampuff View Post
…the regulator is entitled to cancel the licence provided the regulator finds, as a matter of fact… …that the breaches occurred.

Who gets to determine the relevant facts for such an administrative decision?

Don’t confuse ‘silence’ (of the fifth ammendment variety) with an absence of communication. You absolutely need to correspond with the regulator in such a matter. The ‘fifth ammendment’ part just guides what statements or claims you make, which is preferably nothing, excepting perhaps to dispute the accuracy of the facts or for pointing out where opinion or allegation has been confused for fact.
In the case for disputing facts, I don’t mean to give your version of the facts as a rebuttal. I’m merely suggesting that you assert that the facts are not correct in an effort to trigger some form of judicial process that allows the facts to be examined, hopefully with at least a pretence of impartialiity.

There’s absolutely no secret recipe for any dispute of this type or more generally. The strategy must be put together based on the specifics of the case, but the starting point is always to give the prosection/regulator as little ammunition as possible and, inasmuch as it is possible, to question or dispute anything they do have.

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Old 7th May 2012, 21:07   #20 (permalink)
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casa and the Show Cause Notice – Right to have the matter Heard in Court

This is the real matter here.

Each and everyone is entitled to have the matter of accusation heard in a Court of their peers.

SIMPLE

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8th May 2012, 07:16   #21 (permalink)
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Quote:
Andy RR: Who gets to determine the relevant facts for such an administrative decision?

The regulator does.

Quote:
Up-into-the-air: Each and everyone is entitled to have the matter of accusation heard in a Court of their peers.

No they’re not.

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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Old 8th May 2012, 08:19   #22 (permalink)
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Amen – spot on.

Quote:
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

For those seriously interested this link will provide some useful and instructive reading.

AAT conference.

Quote:
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.

It’s a frost ploughing through some of it, but it may prevent embarassment later. It does support virtualy everything CP has said on this forum about ‘the way things are’.

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Old 8th May 2012, 19:29   #23 (permalink)
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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

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Old 8th May 2012, 19:49   #24 (permalink)
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Quote:
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?

That’s an interesting point that you make kaz3g, here’s what that section of the constitution reads:

Quote:
“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.”

Begs the question how much is a pilot license or an AOC worth?

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Old 8th May 2012, 20:35   #25 (permalink)
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Quote:
The only appeal from an administrative decision taken by CASA, after internal review, is a review by the AAT.

Hmmmm … not sure that’s entirely correct. Not aware of any internal review processes in CASA but, in any event, the option of asking a court to intervene is always there in principle. Having said that, the availability of review by the AAT will usually result in courts deciding not to intervene until after the AAT has looked at the matter (and, to anticipate Up-into-the-air’s possible comment: No, the intervention of the courts in these circumstances never involves a hearing, by the ‘peers’ of the ‘accused’, of the case against ‘the accused’.)

Quote:
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.

Hmmmm … not sure that’s entirely correct, at least on the limitation of appeals to the Federal Court. Your next question is an example of an issue that could go directly from the AAT to the High Court. And the line between what’s a review of a question of law versus a question of fact and merits has always been very blurry for me. My brain is probably not big enough, because occasionally the court’s decision seems to me to take into account sympathy for the applicant….

Quote:
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?

So if my Altzheimer’s becomes unmanageable and a licensing authority revokes my bus driver’s licence that I need in order to earn an income to feed myself, that’s an acquisition of property other than on just terms, for which I’m entitled to be compensated? Happy days! My Altzheimer’s is not as depressing any more….

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.

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Old 8th May 2012, 20:37   #26 (permalink)
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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.


Last edited by Andy_RR; 8th May 2012 at 20:50.

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Old 8th May 2012, 22:16   #27 (permalink)
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Quote:
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.

So what about an AOC?

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Old 9th May 2012, 06:25   #28 (permalink)
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Quote:
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.

Clinically, Creampuff is correct (again), but who decided this and on what grounds ?? – and here’s the rub.

Quote:
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.

No – it’s all just a bit too cosy for me, too light on proof, too long on practice, far too subjective and wide open to corruption, in the way that total power corrupts. Currently CASA uses this is flawed system aided and abetted by a system which is obliged by it’s charter to assist in the bastardry.

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.

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Old 9th May 2012, 07:15   #29 (permalink)
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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.

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Old 9th May 2012, 10:34   #30 (permalink)
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Originally Posted by Sarcs View Post
So what about an AOC?

Go on! Whack yours on E-bay and see if you get a bid or two…

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Old 9th May 2012, 11:38   #31 (permalink)
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Quote:
A pilots licence is a priviledge

The piece of paper is the privelege usually earned at great expense.

You then have a right to exercise that privelege once granted.

Therefor that privelege has a value.

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Old 9th May 2012, 11:42   #32 (permalink)
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[A licence] can be revoked at will – the rules of natural justice and procedural fairness … don’t apply to you.

Rubbish.

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Old 9th May 2012, 13:49   #33 (permalink)
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Quote:
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.

Thompson can be granted some presumption of innocence, but it’s interesting to note the Author of “the fair work Act” and instigator of “Fair Work Australia”, one, J Gillard now wants procedural fairness from the hand of the prosecuting authority which aparantly isn’t Fair Work Australia”.

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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Old 10th May 2012, 06:41   #34 (permalink)
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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.

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Old 10th May 2012, 07:48   #35 (permalink)
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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.

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Old 10th May 2012, 08:42   #36 (permalink)
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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.

Quote:
CP – CASA would love you for it, I suspect ….

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.

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Old 10th May 2012, 09:59   #37 (permalink)
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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!

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Old 10th May 2012, 14:43   #38 (permalink)
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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:

Quote:
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. …

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.

Quote:
Kharon: … The AAT as you quite rightly point out ‘belongs’ to the regulator …

I did not point out anything of the sort.

Quote:
Kharon: … Given that CASA can and do arbitrarily, without having to provide a shred of evidence cancel or suspend at will …

Rubbish.

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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Old 10th May 2012, 17:15   #39 (permalink)
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Stand corrected ??.

Quote:
CP – And I always read, with interest, Mr Phelan’s extraordinarily well written and well researched expositions of half of the story.

Happy to stand corrected when you explain the ‘other’ half of the story, the one not in the transcripts which will completely exonerate CASA and tell us why they are simply the best thing since fur lined jock straps.

We wait with baited breath, speak up mate, you now have everyone’s attention.

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Old 10th May 2012, 18:27   #40 (permalink)
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Pineapples and creampuffs – A tasteless meal indeed..

What has yet to be mentioned is that even if you challenge the CAA and it ends up in the AAT and you are exonerated or found ‘not guilty’ the follow up punishment is just as severe. CAA management and Inspectors don’t take too kindly to being ‘exposed or outed’ for performing an injustice and then getting dragged before the AAT to ‘explain’. So after they are given a spanking they then come after you in the typical bullying victimizing way we are used to.

Of course Creampuff who incidentally could just be related to Flyingfiend would know this is the case and know how the CAA game is played.

My warning to anybody willing to throw a pineapple at CAA is simply this – Even if you score a ‘win’ the aftermath of the CASArians who are made to sweat at the AAT is not pleasant and payback is their ‘thing’.
Flyer beware!


Last edited by gobbledock; 10th May 2012 at 21:32.

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10th May 2012, 20:34   #41 (permalink)
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Oh no, I’ve been found out.

I am all of the user names that post stuff that some people don’t like.

The AAT always takes, as gospel, everything CASA says.

Phelan knows the whole story.

You are now entering …. the twilight zone. It’s now … 1987, and GA is really, really, fun and profitable. GA can now, finally, flourish …

For everyone else who exists in the real world, please do your best to understand and comply with the rules.

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Old 10th May 2012, 21:23   #42 (permalink)
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Well.

Rest my case M’lud. So much spin, so many cases, so little evidence, etc. etc.

Steam off; click.

Home Minnie, whip up them pigs, game set and match. (x 2).

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Old 10th May 2012, 22:18   #43 (permalink)
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Well Puffy..in the “Real World” Flying in GA is fun..and for the most part profitable as well, and surprise, flourishing, under the foster and promote
attitude of their regulators, largely because most people do understand the regulations provided by them and abide by them. I think you would find very few “real” people in industry in OZ who would say the rubbish the CAA churn out as regulations are effective, just look at our safety record against theirs. If the regulations are not meant to promote safety, what the hell are they for?
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Old 12th May 2012, 18:51   #44 (permalink)
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Quote:
—- even if you challenge the CAA
Quote:
—– and know how the CAA game is played.

Folks,
Maybe I am a simple lad, but which organisation are we talking about here??
Tootle pip!!

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Old 12th May 2012, 19:48   #45 (permalink)
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Leady, it’s what we have decided to call CASA, we now call them CAA. It’s a long story and it’s Franks fault, he can explain!!!
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