Paper, Order, or Assignment Requirements
School of Law & Justice
Administrative Law (7018)
Final Examination – Semester 2, 2014
This examination is for 70% of assessment in this unit.
Students must complete the following two questions:
Question 1 – worth 40 marks.
Question 2 – worth 30 marks.
All of the fact scenarios are based on the Civil Aviation materials distributed while studying the unit. These materials are available on the unit Moodle site in MS-Word format.
This is an open book take home exam. The exam paper will be made available on the unit Moodle site by 9.00 am on Friday, 14th November. Your answers to the questions must be submitted by 5.00 pm on Monday, 17th November, as an MS-Word or equivalent format file via the assignment drop box set up on the unit Moodle site, unless you have been granted an extension.
There is a total word limit of 3500 words for the examination. It is emphasised that your answers will be assessed beside the criteria set out in the unit outline. These have no direct relationship to the number of words used.
It is NOT expected that students will use style and formal referencing systems or provide a bibliography. However, sufficient citation to find the source must be provided with respect to sources not covered in the unit or referenced in the prescribed text.
If you find that you have not been given all the facts that you consider necessary to answer the question, you should identify the issues and state any assumptions you need to make in order to complete your answer.
It is strongly advised that you do not undertake this examination if you are ill or hold a current medical certificate.
After much discussion about security issues between CASA and the Department of Infrastructure and Transport agreed that a new regulation was urgently needed to provide a system of security clearances for aircrews operating aircraft and the groundcrews working at airports. Accordingly, the Governor General made the Civil Aviation (Review of Security Status) Regulations 2014 (Cth) under s 98(3)(ra) of the Civil Aviation Act 1988 (Cth) and they were registered in the Federal Register of Legislative Instruments on 16th July 2014. The Civil Aviation (Review of Security Status) Regulations were tabled in the Senate on the following day but through an administrative blunder they were not tabled in the House of Representatives on 17th July 2014, the last sitting day of the House of the Winter parliamentary session. The Parliament resumed on 26th August 2014.
Regulation 43 of the new Civil Aviation (Review of Security Status) Regulations 2014 (Cth) provides:
43 Review of security risks associated with employment in the civil aviation industry
(1) The Director may determine that a person employed in the civil aviation industry is a security risk.
(2) The Director may direct a civil aviation operator to terminate the employment of a person determined under sub-regulation (1) to be a security risk.
Smooth Cruise Airline operates an aircraft maintenance facility in Brisbane where it maintains its own aircraft and also the aircraft of other airlines on a contract basis. The chief maintenance foreman, Jake Jessel, has been for many years a highly regarded aircraft maintenance expert generally and at the forefront of aeronautical plasma arc welding. One of Jake’s apprentices, Grace Kelly, recently qualified as an aeronautical plasma arc welder, winning the top national award in the field.
The CEO of Smooth Cruise Airline, Frank Fling, considered this to be the moment to gain widespread recognition of the strengthened capacity of his airline’s workshops and decided to apply to CASA for a Certificate of Approval of its welding facilities under Reg 30 of the Civil Aviation Regulations 1988 (Cth).
Smooth Cruise Airline devoted considerable time and resources to preparation of the written application required by Reg 30(2) and submitted the application on 20th July 2014. Unfortunately, while examining the application, CASA considered it an appropriate moment to review the security status of the airline under the Civil Aviation (Review of Security Status) Regulations. A CASA officer arrived unannounced at the Smooth Cruise terminal and hangers, stating that he was there to review the security status of the airline’s buildings and staff under the powers accorded by Reg 30(4) of the Civil Aviation Regulations 1988 (Cth).
Three weeks later, Frank Fling received a letter from the Assistant Director of Aviation Safety, filling in while the Director was on annual leave, stating:
The Assistant Director has determined by virtue of Reg 43(1) of the Civil Aviation (Review of Security Status) Regulations 2014 (Cth) that the following Airline staff members are security risks: Ponhea Yat and Grace Kelly.
In exercise of powers in Reg 43(2) of the Civil Aviation (Review of Security Status) Regulations 2012 (Cth), the Assistant Director of Aviation Safety directs that Smooth Cruise Airlines must terminate the employment of Ponhea Yat and Grace Kelly because these staff members are security risks.
CASA has determined to decline the application made by Smooth Cruise Airlines for a Certificate of Approval for its aeronautical welding facility because the three staff members of the Airline named above, specifically Ponhea Yat and Grace Kelly, are security risks.
Although no official reasons have been given for the adverse security determination, and even potential grounds were a complete mystery in the minds of those involved, a cousin of Frank Fling’s PA has heard from her daughter’s husband that the civil aviation staff made the security assessment on the following bases:
Ponhea Yat drives a courier van for the airline, mainly transporting mail to and from the local post office where the airline has a post office box. The CIA reported that he was involved in active partisan resistance to the Pol Pot regime in Cambodia (then Kampuchea) and in this role attacked a government concentration camp, killing a number of guards and destroying much government property. “Not enough!” exclaimed Ponhea Yat when confronted with these allegations without a glimmer of remorse. Accordingly he was classified as a terrorist at large.
Grace Kelly is an assistant plasma arc welder, employed in the airline’s aeronautical welding facility at its maintenance workshops, as explained above. Apparently one of the staff of the Assistant Director of Aviation Safety found by googling Grace’s name that she is married to the Prince of Monaco, with dual US and Monégasque citizenship. As the marital partner of a foreign monarch, her security is potentially compromised and she would have divided allegiances. When Frank Fling questions her about this, Grace explains that she was named after Grace Kelly, the former film star and Princess Consort of Monaco, with whom she has obviously been confused and who in any case died in 1982.
Smooth Cruise Airlines values the work of both of its staff members. It seeks your advice on the steps it should take to challenge rejection by CASA of its application for a Certificate of Approval for its aeronautical welding facility.
The two staff members feel greatly affronted by the respective security determinations and wish to be joined in any challenges. Frank Fling is not enthusiastic about this, concerned that it might distract from the airline’s interests in any litigation. Are the staff members entitled in any case to be joined into any challenge?
Write an appropriate memorandum of legal advice for Smooth Cruise Airlines.
Yass International is a small regional airline with big ambitions operating in the ACT, southern New South Wales and country Victoria, established many generations ago by the Biggles family with its headquarters and maintenance workshops at Yass Airport. The Biggles have always been very fastidious about maintenance and safety issues and have never been involved in an air safety incident, let alone an accident.
Georges Clemenceau is an employee of the airline. He arrived from France a year ago and was granted a Certificate of Approval for the maintenance of aircraft pursuant to Reg 30 of the Civil Aviation Regulations 1988 (Cth) without limitation of the period for which it was granted.
Georges has become a key employee of the airline and has been moved into a very responsible job in the maintenance of the aircraft, for which he is amply qualified, in view of his study, apprenticeship and former position with Airbus. His ideas for raising the efficiency of the workshop have placed it among the leading aircraft maintenance workshops in Australia, attracting work away from competitors in Sydney, Brisbane and Melbourne.
Perhaps not through mere coincidence CASA received a letter from a competitor in which it was forcefully argued that the workshop of Yass International produces unreliable and unsafe work because Georges’ English language skills are below acceptable standards.
Georges has now received a letter from CASA stating that his Certificate of Approval has been withdrawn. The letter draws attention to a recent speech given by the Federal Minister for Aviation which indicated the government’s desire to encourage the hiring of skilled Australian workers in the aviation industry. It also asserta that there is a safety risk in employing skilled labour whose first language is not English in a field where the need for urgent, clear communication is the norm not the exception. The letter alleges that Georges’ “below average standard of English” amounts to a breach of the conditions of his Certificate of Approval. For example, there could be no effective control of work carried out within the meaning of Reg 30(2D)(a)(i) if participants in the workplace could not communicate. Thus, it concludes Georges’ Certificate of Approval is now withdrawn.
Georges has telephoned CASA to clarify the position. He has been told by a friendly member of the CASA clerical staff that there is a letter in his CASA file from a former employee of Yass International, now working with a competitor in Brisbane, making these points about Georges:
He is from France and worked for Airbus so probably has very poor skills.
He does not get on well with people because people don’t understand him when he speaks.
A friend of the letter-writer in Queensland had also heard that the standard of his work is poor.
Georges seeks access to the letter under the Freedom of Information Act 1982 (Cth) but CASA has rejected the application because, CASA claims, the letter was received in confidence from another commercial operator. CASA has also stated that Georges has not proved that release of the information will be in the public interest.
Recently the Australian Parliament amended the Civil Aviation Act 1988 (Cth) by inserting:
s 31E Courts not to review Civil Aviation Decisions
(1) A civil aviation decision: (a) is final and conclusive; (b) must not be challenged, appealed against, reviewed, quashed or called into question in any court; and (c) is not subject to prohibition, mandamus, certiorari, injunction or declaration in any court on any account.
(2) In this section: ‘civil aviation decision’ means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act.
Write an appropriate memorandum of legal advice for Georges Clemenceau.
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