Evidence for the absolute "Head of Power" to make Part 61 or Regulation 206 by CASA

Rob Cumming made this Freedom of Information request to Civil Aviation Safety Authority

Response to this request is long overdue. By law, under all circumstances, Civil Aviation Safety Authority should have responded by now (details). You can complain by requesting an internal review.

From: Rob Cumming


Dear Civil Aviation Safety Authority,

I wish to apply under the FOI Act for all documents relating to:

1. The writing of Part 61, CAR 206 that relates to the head of power to make that part or regulation.

This includes the connection to the Acts that were consulted and the specific material used to support the making.

2. Issues relating to the making and involvement of the MELT committee

I consent in advance to removal of any home addresses or home phone numbers.

I also wish to draw your attention to the fact that I am a public interest community based journalist who is now retired from the paid workforce and working voluntarily.

Yours faithfully,

Rob Cumming

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Locutus Sum left an annotation ()

First we must ask what the applicant means when he says "the absolute head of power". I do not know what his intention is when he says "absolute" but I think that the real question that the applicant is asking is "By what constitutional authority does the agency make the regulation." For the Commonwealth of Australia, most of the power of the parliament is given by section 51 ("Legislative powers of the Parliament") in Part V of the Constitution of Australia. The applicant probably wants to know which of the subsections of s 51 gives the authority to make the regulation. The subsections are sometimes called "heads of power".

Now, in my opinion, even if the applicant pays the fee that the agency has estimated, he will be disappointed because of two possibilities. One possibility is that there is no document in the agency to show what the head of power is. In this case, the request will be refused under s 24A ("Requests may be refused if documents cannot be found, do not exist or have not been received"). Another possibility is that the agency has asked an expert before making the regulation. In this possibility, the agency will have asked for legal advice and the advice will be contained in an execmpt document. Section 42(1) of the Act says "A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege." This does not prevent the agency from releasing the document if they wanted to, but they will not want to and they will claim the exemption.

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Rob Cumming left an annotation ()

In Aviation, a Head-of-Power is that which is referred by the Civil Aviation Act. As you rightly point out, the HOP could go back to the Legislative Powers legislation. That could be the case, but with all aviation related matters, there was a refused change to the constitution in the 1930's, which was over-ridden by the High Court.

We will see what transpires.

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Locutus Sum left an annotation ()

Thank you for your note, Mr Cummings. I shall be reading the Civil Aviation Act!

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