The Administrative Appeals Tribunal recently was required to
consider whether the Civil Aviation Safety Authority
(CASA) can issue an Air Operator's Certificate
(AOC) to an organisation if the proposed operator
does not have a current chief pilot.
In White v Civil Aviation Safety Authority (2010) AATA
604, Senior Member McCabe rejected an application for renewal of an
AOC on the basis that the Civil Aviation Act 1988
(the Act) requirements for an AOC could not be
John White was a director of Heli-Co Australia Pty Ltd, a
company owning a helicopter charter business. He first became a
director and took an interest in the company around August 2007 at
which time the company held an AOC.
Shortly after that date the chief pilot left the company, and Mr
White notified CASA of the ownership change and of the departure of
the chief pilot and assured CASA that the company was not
conducting flying operations. CASA varied the AOC accordingly.
In January 2010, John White lodged an application to renew the
AOC even though the company had not yet secured the services of a
chief pilot. CASA rejected the application.
The legislative framework
Section 28 of the Act provides that CASA must issue the AOC if,
and only if various requirements can be satisfied. Included in the
requirements is the obligation for CASA to be satisfied about
aspects of the applicant's organisation including appointment
of 'key personnel' in the company.
Section 28(3) of the Act defines 'key personnel' to
the chief executive officer
the head of the flying operations part of the organisation
the head of the aircraft airworthiness and maintenance control
part (if any) of the organisation
the head of the training and checking part (if any) of the
any other position prescribed by the Regulation.
The arguments raised
CASA took the view that the absence of a chief pilot meant that
Heli-Co could not satisfy the obligations in relation to key
personnel under the Act, and that it was in these circumstances not
permitted to issue an AOC.
John White accepted that Heli-Co did not comply with CASA
requirements. He said that nothing had changed since the period
before the previous AOC expired and if the previous AOC could
remain in place then it should be able to be renewed.
Senior Member McCabe noted that the meaning of the legislation
was reasonably clear. CASA was obliged to issue an AOC if satisfied
as to the various matters in the Act, but so too if not satisfied
that an organisation met the criteria CASA must not issue an
Senior Member McCabe considered that there was no difference
between an original application or a renewal application, as a
renewal application is in reality one for a fresh AOC and the
criteria must be satisfied at the time of the application.
Although Mr White submitted that the lack of an AOC
significantly diminished the value of his business, which he was
negotiating to sell, Senior Member McCabe took the view that this
was an irrelevant consideration in applying the legislative
Accordingly, the application for an AOC was properly declined as
CASA's hands (and those of the Tribunal) were tied.
The decision seems to be a sensible one although one can
sympathise (as did Senior Member McCabe) with the applicant's
position. In hindsight, CASA may have regretted allowing the AOC to
remain in force after notification of the loss of the chief pilot
in August 2007. Perhaps suspension of the AOC at that time would
have been more appropriate.
DLA Phillips Fox is one of the largest legal firms in
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This publication is intended as a first point of reference and
should not be relied on as a substitute for professional advice.
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