New 21 February 2004 CASA Suspension Provisions

New 21 February 2004 CASA Suspension Provisions:

Published May 2004

1. Section 30DB of the Civil Aviation Act 1988 (the Act) tells us that the holder of a civil aviation authorisation (defined in the Act as an authorisation under the Act or the Regulations (Regs) to undertake a particular activity by whatever name it might be called) must not engage in conduct that constitutes, contributes to or results in a serious and imminent risk to air safety. Exactly what constitutes a serious and imminent risk to air safety, is not defined.

2. Under s.30DC of the Act, if CASA has reason to believe the holder of the authorisation is engaged in or is likely to engage in conduct that contravenes s.30DB (see above), CASA may suspend an authorisation by giving written notice to the holder. Do I hear you ask – “How will CASA decide a person is “likely” to engage in a particular conduct”? Anyway moving on, CASA must include in the written notice a summary of Subdivisions C and D. These Subdivisions deal first with CASA going to the Federal Court within 5 business days of the holder being given notice. (Business days is defined as not Saturdays, Sundays or public holidays in the Australian Capital Territory). The other subdivision deals with the fact that CASA must investigate and then may give a show cause notice within 5 days of the expiration of any Federal Court order it obtains (I’ll go into this in detail below). However, having said in one breath that CASA “must” include the summary of the subdivisions, in the same paragraph we see that a failure by CASA to include the summaries, does not affect the validity of the notice.

3. If one receives a suspension notice under this section (30DC) you are suspended immediately upon receipt of that written notice. It might be worth holding your breath, because, though you are on the ground or not operating, CASA must bring an application in a Federal Court registry and obtain an order within 5 business days of your receiving your suspension notice. If it does not, the s.30DC suspension will lapse on the 5th day after your receipt of it. Well that’s a relief you might say. But hang on, how do you know if CASA has an order in a Federal Court within the five days? Having received no notice that it has so obtained an order, do you go back into business on the 6th day? The Act makes no specific provision for notice to you that CASA has obtained an order within the 5 days. In my opinion, unless CASA gives you a sealed copy of the order before the close of the 5th business day, you are entitled to proceed under the provisions of s.30DC(3) which clearly states that the suspension ends at the end of the 5th business day (but check public holidays in the ACT). I believe CASA must first give you the written notice, before filing in the Federal Court (see s.30DE). Thus I argue that for the suspension to continue beyond the 5th day, CASA must serve you with their application that is filed after you received your written notice and the order. This all assumes you are not at this first hearing. For this 5 day requirement on CASA to work, I suspect the first hearing could well be ex parte (without you there). If the first order is made ex parte, the Court might adjourn the matter for one week, thus allowing you to be heard. In the meantime the forty day period has started (see below). A better way of doing all this might be that CASA advises you of the return date of it’s application. You then have the option of attending. You will be grounded or not operating, so you might have time to attend if you can attend to the costs of travel to the particular registry in which CASA issued their proceedings. One would hope that CASA would issue in the court registry that is nearest to you.

4. Section 30DC gives CASA mighty powers to suspend and these s.30DC powers exist over any other provision of the Act or Regs (see s.30DD). Thus even if CASA decide not to first go down the s.30DC path, for example giving a holder a show cause notice under Reg 269, it can technically then turn around and issue a s.30DC suspension on the same facts (so be careful of your response to a show cause notice). It would however, hopefully, have a more difficult argument to convince a Federal Court Judge that s.30DB had been breached, given it did not proceed that way in the beginning.

5. Technically CASA may issue a s.30DC suspension even if a stay has been deemed to come into force following the holder of an authorisation filing in the AAT after a decision other than under s.30DC.

Subdivision C

6. Section 30DE tells us that CASA may “...apply to the Federal Court for an order under this section” within the mentioned 5 business days. If it does not, then the s.30DC suspension will lapse at the end of the 5th day after you received the written notice. This section might be horrible for the affected authorisation holder if the correct interpretation of these quoted words is not applied. Its all very well to say how marvellous it is that CASA must go to the Federal Court within 5 days of your receiving the suspension notice, but is it the case that CASA do not need to go to the Federal Court within 5 days? Does it only need to within 5 days, send its office person down to the Federal Court Registry with the s.30DE application and a cheque for the filing fee? If this is the case, there might not be a hearing for months down the track. Having carefully looked again at this section (30DE), it is my opinion that CASA must obtain an order within 5 days and not merely file an application. The paragraph (1) of s.30DE speaks very clearly in terms of “...apply for an order under this section.” In the next paragraph of the section we see that the Federal Court on being satisfied there are reasonable grounds to believe the holder has breached s.30DB (serious and imminent risk to air safety), the Court must make an order that prohibits the holder from doing anything that is authorised by the authorisation but that, without the authorisation, would be unlawful. The net effect of this section is I believe, that the Court is required to make an order against the holder if there are facts that support CASA’s contention that s.30DB has been breached. Under paragraph (3) the Court is directed to consider the main object of the Act as defined in s.3A and to consider CASA’s performance of it’s functions as defined in s.9A. So we have the premise that the Court is obliged to make an order if satisfied (I would argue satisfied not to the criminal standard but satisfied to the high standard set in the Briginshaw case (1938 60 CLR 336) that s.30DB has been breached. (“...weight is given to the presumption of innocence and exactness of proof is expected.” Dixon J at page 363)) Importantly, the next paragraph very clearly states that an order made by the Federal Court has a maximum duration of 40 days. Now why would the Government say on one hand CASA merely have to file their application within 5 days and permit whatever period is required to obtain that order, when the very order obtained is said to be initially for no more than 40 days? Clearly it would not make a nonsense of the 40 day period by permitting an undefined period to lapse before the 40 day order is obtained? I believe the purpose of s.30DE is to cap CASA’s time in which it can investigate the circumstances that gave rise to its decision to suspend under s.30DC. This cap is without further Court order no more than 50 days. That is 5 days under the written notice and another 40 days under a Court order, and then 5 days after the Court order (see below).

7. There is one catch to this maximum court time period of 40 days. Under s.30DF, CASA may apply (once only) for a further period of not more than 28 days on the original period set by the Court. This application must be brought within the duration of the original order (that period may be less than 40 days). The holder may also apply within the duration of the original order, to shorten the period of the original order. The bottom line as far as this extension period runs, is that no suspension will continue beyond the 5th day from the 28th day from the last day of the original order (see the tables under s.30DF(6) and s.30DJ). So time is certainly of the essence under these s.30DC suspensions and the Federal Court will be required to give some priority to these matters, otherwise CASA will not succeed in obtaining an order within the 5 days of giving a holder their s.30DC suspension.

Subdivision D

8. Section 30DG requires CASA to complete an investigation into the circumstances relating to the suspended authorisation, and to do so within the time of the suspension period ordered by the Court.

9. Having made this investigation, CASA may then vary, suspend or cancel a civil aviation authorisation if it believes there is a serious and imminent risk to air safety if such action was not taken. It has 5 days from the last day of the period set by the Court, to give the holder the show cause notice. It can give any period up to 28 days for the holder to answer the show cause notice. The circumstances giving rise to CASA’s concerns must relate to the same circumstances under which CASA moved the Court for its s.30DE order. (See s.30DH). Given that s.30DG requires CASA to complete it’s investigation in the period of suspension set by the Court, why should CASA have further autonomous suspension powers that are exercised against the same circumstances that gave rise to their s.30DC application and which the Act required it to complete it’s investigation?

10. If at the end of the period given in which the holder could show cause, CASA is satisfied again that a serious and imminent risk to air safety would exist if the authorisation was not varied, suspended or cancelled, CASA may do just that by written notice within 5 days after the period finished within which the holder could show cause. It appears you cannot seek a review of this suspension and it is not clear for how long you might be suspended. This in my opinion is a poor provision. I think there should be no right for CASA to again suspend without a Court order.

11. The legislation attempts to clarify the time periods of suspension by providing a table in s.30DJ. Here we see that suspensions issued under s.30DC and confirmed by the Federal Court under s.30DE effectively have a five-day period extension. If the Court orders a suspension for say 30 days, it is effectively a 35-day period because under this section, it remains suspended for a further 5 days. Also, if CASA at the end of the period of the Court ordered suspension (that is within 5 days thereof), give you a period in which to show cause, you remain suspended obviously for that show cause period but also for a further 5 days after that. Thus CASA effectively has at least 5 days to decide about your show cause response assuming you give it to CASA on the last day of the period. Even if you give it to CASA well before the close of the period given to you, you remain suspended until the end of the 5th day after the period given to you. CASA therefore must give you notice of its decision to vary, suspend or cancel, before the end of that 5th day, failing which your rights are restored. Noting that if you are suspended by this CASA decision you are in no mans land.

12. If CASA goes down the s.30DC and s.30DE path, the new s.31 definition of reviewable decision excludes suspensions taken by CASA under this path. Note it is the suspensions only that are excluded from AAT review if that suspension started with a s.30DC allegation from CASA. Under Reg 269(1A) CASA may not cancel a licence, certificate or authority pursuant to Reg 269(1) unless that person has first been so convicted in a Court of law. The automatic stay provisions in the AAT do not apply to CASA decisions taken on a matter after the Federal Court stay proceedings.

13. These s.30DC provisions replace the previous Reg 268 suspension powers. The new scheme and the repealing of Reg 268 become effective 21 February 2004.