Civil Aviation Safety Authority and Disclosure of an Aviation Security Relevant Offence

 

Introduction

The Civil Aviation Safety Authority regulates, among other things, holders of aviation licenses (such as the different types of pilot licences). The Civil Aviation Safety Authority has regulatory powers under numerous legislation and is considerably more complex than other areas of law.

Holders of aviation licenses have disclosure obligations upon being convicted of an ‘aviation security relevant offence’. It is important that if you are a holder of an aviation licence you are not only aware of this obligation but that penalties may apply if you fail to comply with this obligation.

This article will explore an aviation licence holder’s obligation to disclose an aviation security-relevant offence to the Civil Aviation Safety Authority. Most holders of an aviation licence also hold an ‘Australian Security Identified Card’. In a related article  Department of Home Affairs, AusCheck and Disclosure of an Aviation Security Relevant Offence we discuss a person who holds an Australian Security Identified Card obligation of disclosure upon conviction of an aviation security relevant offence.

This article is general in nature and should not be relied upon as legal advice. If you are seeking legal advice, you can call us on 07 5532 3133 to speak with one of our firm’s litigation lawyers who can assist you with your matter.

 

What does the law say?

Under the Aviation Transport Security Regulations 2005 (Cth) (‘Regulations’) there is an obligation for a holder of a security designated authorisation who is convicted of an aviation security relevant offence to notify the Civil Aviation Safety Authority in writing of the conviction and any sentence within 7 days.

A maximum penalty of 20 units can apply for failing to disclose this information to the Civil Aviation Safety Authority.

 

Who is a holder of a ‘security designated authorisation’?

The definition of a security-designated authorisation is somewhat complex and covers various aviation licences with the Civil Aviation Safety Authority. Some common licences include:

1. flight crew licence;

 

2. commercial pilot licence;

 

3. private pilot licence; and

 

4. recreational pilot licence.

The above is not an exhaustive list of licences and there are other types of licences which are applicable.

 

What is an ‘aviation security relevant offence’?

The Regulations set out various types of offences which constitute an ‘aviation security relevant offence’. The offences are categorized tier 1, tier 2 or tier 3 offences.

Whilst all 3 tiers are serious, the tier 1 offences are the most serious offences. Some examples of tier 1 offences include offences involving:

1. terrorism;
2. espionage or selling national secrets;
3. treason;
4. weapons of mass destruction;
5. criminal organizations or gang;
6. smuggling or trafficking people.

Some examples of tier 2 offences include:

1. assaulting or threatening a person on an aircraft, vessel, offshore facility, airport or port;
2. an offence under the Aviation Transport Security Act 2004 (Cth) that is punishable by imprisonment (whether or not the person is in fact sentenced to imprisonment).

Some common examples of tier 3 offences include:

1. Murder or manslaughter;
2. An offence relating to assault;
3. An offence relating to sexual abuse or sexual exploitation of a child;
4. An offence relating to intimidation;
5. An offence relating to affray or riot;
6. An offence relating to firearms, ammunition, weapons or the use of an item as a weapon;
7. An offence relating to production, possession, supply, import or export of an illegal drug or controlled substance;
8. An offence relating to extortion or blackmail;
9. An offence relating to theft;
10. An offence relating to forgery or fraud.

The above is not an exhaustive list. At the time of writing this article, there are 26 tier 3 offences in total.

 

What can happen after disclosing a conviction for an aviation security-relevant offence?

Subject to the Civil Aviation Regulations 1988 (Cth), the Civil Aviation Safety Authority may vary, suspend or cancel a holder’s approval, authority, certificate or licence on one of the following grounds:

1. The holder has contravened provisions of the Civil Aviation Act 1988 (Cth) or this regulation;

 

2. The holder fails to satisfy or continues to fail to satisfy any requirement under this regulation in relation to obtaining or holding their approval, authority, certificate or licence;

 

3. The holder is not a ‘fit and proper’ person;

 

4. The holder has contravened a direction or instruction within the Civil Aviation Orders which affects the safe navigation and operation of an aircraft.

The Civil Aviation Safety Authority must give notice to the holder in writing prior to varying, suspending or cancelling a holder’s approval, authority, certificate or licence and must allow the holder to respond within such a time that is specified in the notice. The time given to respond must be reasonable in all circumstances of the particular case.

The most common ground which follows after disclosing a conviction to the Civil Aviation Safety Authority is the concept of the holder not being a ‘fit and proper’ person. In short, this phrase is a reference to the holder’s conduct which is measured against the responsibilities, functions and duties of the holder’s authorisation and also takes into account the interests of other pilots, passengers, owners of aircrafts and the air navigation safety and the public at large.

 

What does varying look like?

If the Civil Aviation Safety Authority decide to vary a holder’s authorisation then this usually means that the holder will retain their authorisation but may have conditions or limitations imposed on their authorisation.

 

What does suspension look like?

If the Civil Aviation Safety Authority decide to suspend a holder’s authorisation then this usually means that the holder’s authorisation will be suspended for period of time.

The Civil Aviation Safety Authority have powers to suspend a holder’s authorisation for the purpose of an examination.

If a holder’s authorisation is suspended, then their authorisation has no force or effect for the duration of the suspension, but the period of their authorisation continues to run.

 

What does cancellation look like?

If the Civil Aviation Safety Authority decide to cancel a holder’s authorisation this simply means that the authorisation is revoked, and the holder no longer has the authorisation.

 

Can I challenge the Civil Aviation Safety Authority’s decision?

If the holder of an authorisation is unsatisfied with the decision by the Civil Aviation Safety Authority to vary, suspend or cancel their authorisation, the holder may apply to the Administrative Appeals Tribunal within a certain time period for a review of the decision.

It is important that any appeal filed in the Administrative Appeals Tribunal is well considered and filed before the time limit.

 

Conclusion

If you are a holder of an aviation licence, it is important that you not only disclose an aviation security relevant offence to the Civil Aviation Safety Authority but that you also seek independent legal advice from solicitors experienced and competent in dealing with this authority.

Dealings with this regulator should not be taken lightly, and particularly if you are a holder of an aviation licence who requires their licence for work purposes or enjoys flying recreationally it should be of the utmost importance to engage lawyers who can assist you with obtaining the best possible outcome in the circumstances of your matter.

This article is general in nature and should not be relied upon as legal advice. If you are seeking legal advice, you can call us on 07 5532 3133 to speak with one of our firm’s litigation lawyers who can assist you with your matter.

We offer a non-obligation twenty (20) minute consultation to discuss your matter generally and have a law office on the Gold Coast and a law office in Brisbane.