It took some reading, but again the effects of poorly worded legislation in reg 206 is again on us all.
From the FCA finding:
41. The effect of s 27 of the Act is that if a commercial air activity is not prescribed in reg 206 then the operator of the aircraft does not require an AOC.
It is common ground between the parties that:
(a) in order to operate a commercial air charter service an AOC is required by operation of subreg 206(1)(b).
(b) Caper holds an AOC, issued on 10 Feb 2010, authorising it to conduct passenger carrying charter operations, in Australian territory, in specified Australian registered aircraft; and
(c) Caper is not and has never been authorised under its AOC to operate RPT services as defined by subreg 206(1)(c).
The effect here really becomes one where casa is regulating a commercial operation, not dealing with the underlying operation to ensure that the operation is operated safely.
and further:
48, As a result the Tribunal was required to look behind the immediate textual content of subregs 206(1)(b)(ii) and (c) and carefully consider the scheme of the statutory provisions that prescribe the “commercial purposes” for which an AOC is required. The determination of the dispute rested on a choice between two different interpretations, and in construing the two provisions the Tribunal was required to apply an interpretation that would promote the purpose of the Act rather than one that would not. In my view it did not do so.
Again, is casa now to be the purveyor of the "commercial purposes"?
The effect of a completely separate entity [AAT] ringing the charter operator [Caper] and saying "We need an aircraft for a 9AM flight this week, but don't know how many persons for the tour we are running, we will advise prior" has not at all been considered, nor the potential response of "Will you let us know the numbers and weight so we can decide whether a Chieftain or the 206 is available" has not at all been considered.
That the FOI in the matter has rung AAT or Caper, to get a seat, but was told that he could only get a seat by being part of a tour indicates that the flight is available only for a specific purpose.
To provide a flight for AAT customers to "Do the Tiwi tour" - surely a charter operation and in effect similar to that of a "regular" charter [RPT] by the Fly-In-Fly-Out [FIFO\ operators as described by the FCA judge.
One of the quoted cases is worth a read as to the matter of "Head of Power", and it's relevance in this matter.
The quotation available at:
Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 (28 April 1998)
We can take this further, remembering that the Caper matter has gone to the Tribunal, where they were successful. casa applies "double jeopardy" and goes to the Federal Court [The AAT, stands in the shoes of the Regulator] and the learned Judge, quotes the following:
...the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
The key words are "...the duty of a court...."
Last time I looked, the AAT was not a Court!!!
If casa wants it this way, as Harvey [the casa million dollar man] appears to, then all the evidence must be to that standard, an issue in many cases, that has not been met.
Just look at some of the pprune posts to this time.