Automatic Stay Provisions changed 2009:
Published March 2009
1. If you receive a show cause notice from CASA and then do not convince CASA to change their attitude towards you resulting in one of your rights being suspended, that decision is stayed for 5 days and the stay will continue if you, within 5 days, file proceedings in the AAT to review that decision.
2. If you do file in the AAT the CASA decision is stayed, that is, not carried out or is of no effect for 90 days.
NEW LAW - (Effective the day after Royal Assent)
1. You can still file in the AAT within the 5 days and the initial 5 day stay continues. However, no longer will you obtain an automatic stay for 90 days.
2. In fact your stay could finish within a week!
3. You only receive the stay until such time as you convince the AAT that you should receive the benefit of a stay pursuant to s.41(2) of the AAT Act. That is, a stay until your application for review is heard.
4. When you apply to the AAT within the 5 days after receiving a suspension/cancellation notice, you must apply for a review of the relevant CASA decision AND a stay of that/those decision(s) pursuant to section 41(2) of the AAT Act . If you don’t also apply for the s.41(2) stay, your stay will lapse on the 5th day after your receipt of the decision(s). (See section 31A of the Civil Aviation Act 1988.)
Assuming the Senate passes these amendments, they place an immediate onus on you to convince the AAT to continue a stay. Previously you had 90 days as a given. Now it only depends on how soon the AAT can hear your application for a stay.
Section 30DC of the Civil Aviation Act 1988 has not been amended. This is the provision where if there is, alleged by CASA, to have been a serious and eminent risk to air safety, CASA can serve you with a s.30DC 5 day immediate suspension. However, CASA then has to also file in the Federal Court within 5 days to get a continuance of their 5 day suspension.
I suspect that we will not witness many more s.30DC suspensions. Why would we when CASA can now simply serve you with a suspension notice and then it is up to you to carry the onus of showing the AAT that a stay should continue?
I cannot imagine CASA delaying your hearing in the AAT to get the stay continued. You can expect to come on for a hearing quickly. Then you will face CASA's submissions to the AAT that the stay should not continue because the risk to air safety is too great, and that's why they suspended you. The AAT will need to be robust and remain non fearful of overruling CASA's predictable submission; that it is the expert in aviation safety and it has decided to ground this person so end of story.
© C. P. McKeown - 06 March 2009