[Peetwo]

From recent appearances by CASA LSD in the AAT, I caught this AAT review case which was subject to appeal by CASA after a ruling in the Federal Court - Civil Aviation Safety Authority v Marsh [2014] FCA 1253 (21 November 2014) - that it should be revisited by the AAT Deputy President PE Hack SC.

This case of attempted embuggerance began for the applicant Mr Marsh when he sat the ATPL Flight Planning exam on 12 October 2011 &...

 "..In September 2012 CASA came into possession of information that suggested that Mr Marsh may have cheated in the October 2011 examination and that in July 2012 he may have provided information to another person (who I shall call N) that might have allowed others to cheat in a similar manner. On 8 August 2013, following an investigation, CASA, by a delegate, decided that he had assisted another person to cheat and decided to suspend his various licences for a period of six months..."

This led to Mr Marsh seeking review of those decisions in the AAT on the 10 October 2013, where DP Hack set aside the CASA decisions...

Then we had CASA LSD obviously feeling affronted by this decision and taking it to the Federal Court (see above) and finally back to the AAT (hopefully for the last time... )

Anyway here is DP Hack's decision this time round...

22. Finally, the Authority submits that a licence holder who does not understand, and does not see, that cheating is a threat to a licensing system designed to achieve and protect the safety of air navigation, does not properly understand, and does not discharge, the responsibilities, functions and duties of the holder of a commercial pilot’s licence as those matters emerge from the provisions of the Civil Aviation Regulations.

23. The submissions for Mr Marsh set out in considerable detail his career in aviation following the original hearing. As the Authority points out, those matters have not been the subject of evidence. As the parties agreed to proceed on the basis of the evidence at the original hearing, supplemented by written submissions, I consider that I am not able to have regard to the matters set out in Mr Marsh’s submissions beyond inferring, from the absence of any suggestion to the contrary from the Authority, that Mr Marsh has not come adversely to the notice of the Authority since the last hearing.
24. The submissions otherwise stress the absence of any serious or imminent breach of air safety by Mr Marsh, and the time that has elapsed since his transgressions. Given that the Authority does not suggest any serious or imminent breach of air safety, the first submission rather misses the point. But I regard it as a lawyer’s flourish rather than a demonstration of a continuing lack of insight on the part of Mr Marsh.[22]

25. I said in my earlier decision that I had been favourably impressed by Mr Marsh and concluded he had a proper understanding of the need for integrity in his dealings with the Authority and, more generally, in his aviation career. Having referred to evidence that suggested that model answers to frequently repeated questions were freely circulating amongst candidates, I said of his conduct:

Mr Marsh participated in this system. He did not himself cheat (using the word in its popular sense). At worst he may, by his actions, have assisted others to do so and gained some potential benefit from receiving the four pages. That benefit could only have been slight given that the four pages contain far more suggested answers than were contained in the examination that Mr Marsh took. His minor role in a widespread system does not satisfy me that he is not a fit and proper person when I have an otherwise favourable impression of him.[23]

I accept that conduct amounted to a contravention of reg 298A(1)©(iii) and 298A(1)(e) (as I have sought to explain in paragraphs [19] and [20] above). As I earlier said, there are two critical aspects of Mr Marsh’s conduct – receiving the document, with the potential to benefit from it, and passing it on to another where others might benefit from it. But I rejected the case of actual cheating and remain of that view. In the context of what was obviously a widespread practice Mr Marsh played a minor role. He was wrong to do so but his transgressions at that time do not lead me to conclude that he is not a fit and proper person. I do not doubt that Mr Marsh has learned significant lessons from this experience and that the Authority can have confidence in his integrity. I do not doubt that he appreciates, probably more than most, the need for absolute honesty in his dealings with the Authority.

26. As I am not satisfied that Mr Marsh is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a commercial pilot I would set aside that decision of the Authority.

 
One has to wonder how much that 4 year trail of attempted embuggerance cost us taxpayers?? I also question whether any of this was could in anyway be regarded as adhering to the principles of the Government Dept/Agencies Model Litigant Rules...

MTF..P2