Christopher McKeown LL.B.  M.C.I.L.T.  
Barrister

Fit and Proper Person to be a Pilot The now current amendments to CASA’s role in suspending and cancelling a licence:

In a recent matter before the AAT a commercial pilot had the good fortune of receiving a result that was almost exactly what he wanted. In March 2002 CASA suspended his flying licences (commercial and private) pursuant to Civil Aviation Regulation 268. (Reg 268 was said to be available so that CASA could investigate an incident and the pilot be grounded by force of the Reg. while CASA investigate). This particular suspension was said to relate back to an incident nearly two months earlier in January 2002. One might ask the question “If it was such a safety risk, why not suspend immediately upon hearing of this incident?” Could one argue that this was an unfair and incorrect use of Reg 268? The Pilot applied in the AAT for a stay of the suspension but was unsuccessful. However, recent amendments introducing an automatic stay, had they been in place, might have granted him a stay. (See below). After the 28 days allowed for the suspension under Reg 268, CASA then moved to Reg 269 to cancel his licences outright. (One should note that CASA give the affected person an opportunity to show cause why the intended cancellation should not take place).

If we were to compare what might have happened in the above scenario had the current provisions of the Civil Aviation Amendment Bill 2003 been enacted, we would see that if CASA had not gone to the Federal Court within 5 days of serving the suspension notice, the pilot would have been able to obtain an automatic stay to the suspension/cancellation by his merely filing of an application for review in the AAT. (I think this is a considerable step in the right direction). However, under the new system, had CASA chosen to take this matter to the Federal Court on the basis (and the only basis) that the pilot’s behaviour was a serious and imminent risk to air safety, the pilot would be grounded notwithstanding the filing of an application for review in the AAT. Can one presume all Reg 268 type matters will now have an application filed in the Federal Court? – I suspect so. Interestingly, at least the suspension under Reg 268 lapsed after 28 days, but there is no such provision in the current amendments - if CASA merely file in the Federal Court within 5 days. CASA, by merely filing their application in the Federal Court within 5 days can continue grounding a pilot (without a hearing) for a now uncertain period of time, pending the hearing of their application. Of course the matter will eventually come on for a hearing in the Federal Court on the question of whether the pilot should continue to be grounded. Is this unfair to the person affected and is it potentially even wider than the previous Reg 268?

Some might say CASA should be required to first obtain the grounding order, rather than merely file an application within 5 days of serving their suspension notice - thus they avoid their notice being examined until the Court is available to hear the matter. Having said this, I think we are moving in the correct direction to obtaining an independent ruling before a person’s privileges are removed. CASA does not need to have the burden of deciding who should be immediately grounded. They need to investigate, but should then present their argument before an independent person to make the final decision. I suspect CASA will be grateful for not being required to make this difficult and unpopular decision.

CASA should in my view, be required to obtain at least an ex parte order (an interim order obtained without the affected person present at the hearing) rather than merely filing an application. I see no reason why the Federal Magistrates Court could not be used to obtain this ex parte order. However, the current government apparently has a policy to not give Federal Magistrates this jurisdiction (and can we presume, would rather see the affected person incur the higher Federal Court fees?).

Back to the mentioned case - Earlier this year the pilot’s hearing of the review of his cancellation came before the AAT. I quote from the judgement. “Cancellation of the applicant’s pilot licence, thereby jeopardising his aviation business and livelihood, can only be regarded as grossly excessive and unreasonable and, therefore, highly inappropriate.”

CASA alleged that the pilot was not (amongst other things), a fit and proper person to hold a licence. What does this mean? The Tribunal decided that there is a difference between the situation of a person being issued a licence and a person having their licence cancelled. At the issuing stage, the Tribunal said you look only at matters that relate to the safety of air navigation, whereas at the cancelling stage you have regard to a wider range of considerations. You consider not only matters relating to the safety of air navigation, but also the licence holder’s past record of compliance, or non compliance, with the Regulations during the currency of their licence as being indicative of the likelihood of their complying, or not complying with the regulations in the future and of their respect or lack of respect, for the Regulations and civil aviation regulatory legislation generally. This includes an applicant’s conduct in his dealings with CASA officers in their professional capacities and whether such conduct is indicative of the degree of the applicant’s respect for the civil aviation laws. In this case the pilot had a restraining type court order against him, taken out by CASA officers. The conduct which allegedly lead to the orders being made, was said by the Tribunal to be a very angry reaction to particular action by those CASA officers which placed his aviation business and his very livelihood in jeopardy and which he regarded – not unreasonably, as unfair and completely unjustifiable in the circumstances. The Tribunal found that, viewed in that way, the conduct was inexcusable and unacceptable, but that it could not fairly be regarded as indicating, of itself, a scant regard by him for the aviation laws or an inability or unwillingness on his part to relate professionally and constructively with CASA and its officers in the future.

What is the disadvantage to anyone, if CASA were required to first obtain an order before being able to side step the automatic stay provisions in the AAT?

This interesting 48 page judgement of the Administrative Appeals Tribunal can be viewed online.

© C. P. McKeown - October 2003