VOCA

An aviation researcher, writer, aviation participant, pilot & agricultural researcher. Author of over 35 scientific publications world wide.

Categories

Good reads

Oil Prices

#ozaviation

Show Cause Notice – AOPA procedure CAR 269

Show Cause Notice – Boyd Munro procedure

In light of the recent spate of actions by CASA, with the distinct aim of “suspension”, rather than trying to work properly with the individual, who in the eyes of CASA may have transgressed, or assumed to have transgressed.

I reproduce the instructions and directions that originally came from Boyd Munro.


E5 NOTICES TO SHOW CAUSE WHY A LICENCE OR CERTIFICATE SHOULD NOT BE SUSPENDED OR VARIED

E5.1: A “Notice to show cause” why a certificate should not be suspended or varied, is issued under the authority of CAR 269 (3) (b).

The following closely paraphrases a commentary provided by an official of the Aircraft Owners’ & Pilots’ Association. The circumstances it describes accurately affect the current regulatory practice and attitudes in respect of “show cause notices.”

CASA frequently sends out what are called “Show Cause” letters. These letters invite a certificate holder – an individual or a corporation – to show cause why a license or certificate should not be cancelled under CAR 269. They usually allege that the certificate holder has 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 trap. A certificate holder who responds to that letter is 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.

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;

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 receive 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 main wheel 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 canceling 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 canceling 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!

IF EVER YOU GET A “SHOW CAUSE” LETTER, RECOGNISE THAT YOU ARE PLAYING FOR KEEPS! DON’T DO OR SAY ANYTHING UNTIL YOU HAVE WORKED OUT YOUR WHOLE PLAN.

KEEP THIS DOCUMENT IN A SAFE PLACE, eg. INSIDE YOUR AIRCRAFT FLIGHT MANUAL


E6 SUSPENSION OF CERTIFICATES

E6.1: This is one of the most serious issues presently confronting the industry. Details of several suspensions, to be found at Section B of this document, reveal the way this process is abused, apparently systematically, by the regulator.

E7 CANCELLATION OF LICENCES OR CERTIFICATES

The cancellation of a licence or certificate is implemented after CASA has assessed a certificate holder’s response to a “show cause” as inadequate. It is subject to AAT review; however this process is so costly and time consuming to an already grounded operator, and CASA throws such considerable and expensive legal talent into the battle, reinforced with frequent use of the word “safety” that few operators in that situation have the resources to mount an effective challenge.

E8: CONTRACTORS

E8.1: It is of considerable concern to certificate holders that many individuals now responsible for making recommendations to delegates upon which delegates’ decisions are based, are not permanent employees of the Civil Aviation Safety Authority, but contractors on fixed terms, the continuation of whose contract is dependent on the recommendation of the delegate.