I'll open my mouth and remove all doubt. In my interpretation of Creampuff's question, I would have a tough time assigning guilt under either reg. I would like to know the original intent and history of both laws, but in my layman's read, it seems to me that the intent is to prohibit the unauthorised operation of the aircraft's controls, or the operation of an aircraft without the appropriate permission, ie. the equivalent of stealing, grabbing the controls from the pilot for "fun" or to see what happens, or for joyriding.
Wasn't Toller invited to manipulate the controls by the PIC? (Entrapment perhaps?) If so, a technical breach of both regs, but were the laws written with the intent to prohibit this specific minor incident with little or no safety repercussions or something far more serious? On a hunch, I posture that the regs were meant to enable prosecutorial support for the more serious incident to protect the property and decisions of the aircraft owner, passengers, general public and PIC. In my opinion, in this instance, the PIC should get a smack on the side of the head accompanied with a "What were you thinking?" and Toller should receive a slap on the back of the hand with a "You should have known better!" and leave it at that. Seems to be a big mountain out of a molehill. I'm sure both will think twice before they do it again and isn't that the goal?
Zhaadum, young GA pilots might argue over who has the bigger member, watch and wings, but like older airline pilots, real lawyers argue over the relative size of their wallets and the views from their back verandahs.
Clapton. Hopefully relevant to the Senate Inquiry will be CASA’s parlous mismanagement of the regulatory reform process since 1988 and the ambiguity which appears to exist in current regulations.
CAR 206 1 (c) states:
Quote:
"the purpose of transporting persons generally, or transporting cargo for persons generally, for hire or reward in accordance with fixed schedules to and from fixed terminals over specific routes with or without intermediate stopping places between terminals."
Nine years ago, CASA audited a number of AOC holders in the Torres Strait, based upon an interpretation of the above regulation by a Brisbane based CASA lawyer. He identified that five components of an operation must exist for a flying operation to be deemed “RPT”:
Transporting passengers or cargo;
For hire and reward;
In accordance with fixed schedules;
From fixed terminals;
Over specified routes;
The CASA lawyer’s written definition defined the first three requirements but failed to provide any definitions of the last two “Fixed Terminals” and “Specified Routes”. Neither term is defined in any current CASA legislation definitions.
I understand the CASA lawyer’s interpretation was subsequently withdrawn.
I have an aviation barrister’s opinion of the meaning of the two terms. I would be very interested in your opinion of their meaning?
Regarding the contents of this thread in general and the ensuing legal debate between Clapton and Creampuff, I must say that from my own point of view it has been a fascinating read. But what it has done more than anything, is to confirm that the current regs are a mishmash that layman such as myself have little hope of interpreting correctly with out the help of legal counsel. If lawyers can’t agree on what the regulations mean, what hope has the average pilot?
This demonstrates the great need for the entire regs to be overhauled and written in such a manner that they are not open to interpretation, and don’t require each pilot to engage a lawyer to make sure that he/she is abiding by the regulations as they stand. What it further demonstrates is the absolute disgrace of the regulatory reform process having taken so long to complete, with no end in sight, and little if any progress being made at present. Australia is a little better than a third world country in this regard, and the CASA should hang its head in shame.
"This demonstrates the great need for the entire regs to be overhauled and written in such a manner that they are not open to interpretation..."
(Or misinterpretation!)
What a great idea - but wait, isn't that what has been going on for the past twenty years?
Quote:
"Australia is a little better than a third world country in this regard, and the CASA should hang its head in shame."
I don't agree! At least Papua New Guinea, a third world country by any standards, saved a fortune by adopting the NZ CAA Regulations, the exercise funded by the Australian tax payer!
But it's only millions of our tax dollars being expended on our regulatory reform process. Surely you have some sympathy for the long term job security of the many CASA employees involved in the process?
I agree with your sentiments about the regulatory rewrite program. It has been a debacle for at least 12 years. For 5 of those years Byron has been in charge.
Your comments on CAR 206 are spot on. Despite promise after promise there has been no progress on fixing the problems of CAR 206.
However, the fact is that the regulation rewrite program was just about completed in 1996, when Minister Sharp, aided by AOPA members like Mr Hamilton as well as Mr Munro and the industry representatives on the then PAP successfully managed to scuttle the whole process.
The RSVP as it was called was designed to restructure the existing regulations and Orders into a two-tier FAR format and numbering system so as to make the Australian and US system compatible as far as possible and to place existinbg rules into a two-tier format as far as possible rather than being scattred all over the place (we now have the Act, the 1988 regulations, the 1998 regualtions, the Orders, the MOSs, temporary Orders to plug gaps while the new rules are being prepared etc). No one could have come up with a bigger mess if they planned it themselves.
A lot of this has to do with the lack of any accountability of successive Ministers and Departments to discharge their responsibilities for making regulations and being too frightened of making a decision for fear of offending anyone - but that is what governemt is about - governing in the public ineterest, not to placate particular vocal minorities who are only interested in their own self-importance.
The CASA website provided the following information about the scuttled 1996 program:
"The exercise was about 90% completed when in 1996 the then newly created PAP managed to have the project disbanded. The then Minister formally dropped the RSVP project on 18 December 1996 when he advised the Senate Standing Committee on Regulations and Ordinances that “the draft regulations prepared for the RSVP will not be made into law”.
Since then it has been one debacle after anothet. Byron has been in charge of this for 5 years now and nothing has happened because he no idea what he is doing and neither do those he has put in charge in the regulation rewrite program. The wonderfully m named PAGO (probably should be called POGO) has no idea about regulatory development (what exactly are My Boyd's credentials in regulatory development apart from being a Byron yes man - same with Mr Gratton who can't even read legislation let alone know what it means). But these people are put in charge of the rule rewrite program. Byron's "directives" are typical of an individual who has no idea what he is doing and no idea of what his (ad CASA's) role is in regulatory development- even he doesn't seem to understand what his"diredtives" mean. How much has been spent on the rewrite program in the last 10 years. One or two hundred million dollars would be close to the mark. Good value??
Unfortunately you will never get a set of regulations that are not open to interpretation. This has never happened in area area of legislation and never will happen. The best you can do is to get a set of regulations that are, as far as possible, unambiguous in most instances. This has to be supplement by proper information and education material about the rules (similar to the road traffic experience).
Even those like Mr Hamilton who trot out the old furphy that the FARs are simple and easy to read clearly have little understanding of the FARs. Here is another extract from the CASA website that deals with some of these issues:
"Finally – FAR simplicity and unam\iguous legislation
Mr Hamilton and others have madea lot of unsubstantiated statements aboutthe simplicity and clarity of the FARs. AOPA continually contends that they are easy to comprehend and are written in plain English. This is refuted by the United States itself. In a report to the President of the United States on 12 February 1997, the White House Commission on Aviation Safety and Security found that the FARs were difficult to understand, were contradictory, open to different interpretations and needed to be rewritten in plain English.
The Commission found that the “current FARs and supporting Handbooks, Technical Standards Orders, Security Directions and Advisory Circulars have become too prescriptive and complex and increasingly open to misinterpretation. Sometimes they provide conflicting policy or procedural advice. In many cases, the FARs do not allow for advances in technology that increases security, safety or efficiency”.
The Commission also rcommended that “a bottom-up review of existing regulations should be conducted to identify those in need of rewriting as performance-based, plain English regulations. Such clarifications would improve and help the FAA resolve serious problems created by differences in interpretation of regulations by FAA officials across the country”.
A good example of the complexity of the FARs can be found in the definition of “public aircraft” in the regulation 1.1 of the FARs. The definition is almost incomprehensible. Perhaps Mr Hamilton can explain it to us:
Public aircraftmeans an aircraft used only for the United States Government, or owned and operated (except for commercial purposes), or exclusively leased for at least 90 continuous days, by a government (except the United States Government), including a State, the District of Columbia, or a territory or possession of the United States, or political subdivision of that government; but does not include a government-owned aircraft transporting property for commercial purposes, or transporting passengers other than transporting (for other than commercial purposes) crewmembers or other persons aboard the aircraft whose presence is required to perform, or is associated with the performance of, a governmental function such as firefighting, search and rescue, law enforcement, aeronautical research, or biological or geological resource management, or transporting (for other than commercial purposes) persons aboard the aircraft if the aircraft is operated by the Armed Forces or an intelligence agency of the United States. An aircraft described in the preceding sentence shall, notwithstanding any limitation relating to use of the aircraft for commercial purposes, be considered to be a public aircraft for the purpose of this Chapter without regard to whether the aircraft is operated by a unit of government on behalf of another unit of government, pursuant to a cost reimbursement agreement between such units of government, if the unit of government on whose behalf the operation is conducted certifies to the Administrator of the Federal Aviation Administration that the operation was necessary to respond to a significant and imminent threat to life or property (including natural resources) and that no service by a private operator was reasonably available to meet the threat."
Your comments on CAR 206 are spot on. Despite promise after promise there has been no progress on fixing the problems of CAR 206.
You have my respect!!
Quote:
One or two hundred million dollars would be close to the mark.
Jeezus!!! I expected a few million......... but no where near that cost!!
Whilst part of the blame is due to incompetent CASA executive management, the buck stops with a string of incompetent and incapable Ministers for Transport over the past twenty years.
The opinion on CAR206 that I have, not withstanding anything in Seaview or Monarch and which I no longer care to debate, is that CAR206 was "lifted" almost verbatim from the pre 1988 ANRs, out of context and is dependent upon ANRs 197 to 203 and other legislation for interpretation.
"Specified routes" were airline routes marked on pre 1988 DCA charts, over which an air charter or ANR203 exempt operator could not operate more than once in 28 days (later, from memory, the 4 hour/8 hour rule was implemented.)
"Fixed terminals" were dedicated Commonwealth owned airline terminals at Commonwealth owned airports, which were defined in then existing legislation.
That is a view I held ten years ago and hold today. It is a view supported by some experienced CASA FOIs but not necessarily supported by CASA's legal fraternity, who, to the best of my knowledge, have failed to provide an intelligent and authorative interpretation of CAR206.
Well, Monro has been gone from AOPA for quiet some time, as has Hamilton. I don't recall Munro being part of AOPA when Byron was anywhere near the scene.
One should ask what the three present policy makers have to say about the matter. They have experts on everything I am told.
One of their Troika will submit something if it pleases them and CASA.
Oh clapton, I suppose I should ‘fess up on a very important point.
But before I do, in an amazing coincidence I was flicking through the June edition of the NSW Law Society Journal (Vol 46 No. 5) yesterday, and jigger me with a barge pole if there’s not an article headed In-house ethical dilemmas are many and varied. (see pp14-15) It’s based on a ‘Legalwise Seminar’ given by an academic from UTS (not one of those evil private lawyers). I commend to you the following paras:
Quote:
On the other hand, from an ethical viewpoint, there is obvious potential for conflict between an employer as legal client, and boss. Asked to do something improper, an in-house lawyer would find it more difficult to say no. Saying no might mean leaving the job instead of just ending the retainer.
…
If you are very entrenched in an organisation as in-house counsel, how can you bring detachment to the position?
To me, it’s more difficult when there’s client wrongdoing when you are employed by the client than in a traditional relationship …
That’s at least two of us who can spot the difference.
And you must stop putting words in my mouth, clapton.
First, I didn’t say that ‘private lawyers have a monopoly on acting with integrity’. I just said that in the circumstances, the General Counsel of CASA had a patent conflict of interest. Your reasoning seems to be that private lawyers sometimes do bad things, therefore the General Counsel didn’t have a conflict in the circumstances. That does not follow. If you don’t agree with me, we’ll just have to agree to disagree. (As to your question about in-house lawyers, go to The Age website and do a search for the terms ‘General Counsel’ and ‘DMO’).
Secondly, I have never expressed an opinion as to whether there were any breaches by Mr Toller. Please clapton, read that twice. Your evident involvement in this is affecting your objectivity.
But now to my admission. (Drum roll) I confess to being emotionally involved in this, because I find it all so side-splittingly funny. I’d thought all the entertainment value had been extracted out of this years ago, but now I’ve got the opportunity to get some more laughs out of the revival tour!
What lies at the heart of this storm in a teacup? Is it regulatory breaches (if there were any)? No, it wouldn’t have mattered if Mr Toller was the most qualified C208 pilot on the planet.
What lies at the heart of this storm in a teacup is that Mr Toller, as the head of CASA, was silly enough to take the controls of an aircraft being operated by an organisation regulated by CASA. It’s like the Commonwealth Chief Medical Officer having a go at an operation while on a tour of new hospital.
Now as it turned out, he wasn’t the most qualified C208 pilot on the planet, and the journalist in the aircraft was not overly impressed by the ‘firmness’ of the landing.
But is the response to admit the mistake and learn a lesson? Oh no.
And from there, it snowballed into the immensely amusing mess of inquiries this and opinions that, and Skehill this and Sherman that, and questions on notice this and press release that, all of which focused on the ‘management’ of the potential regulatory breach issues and all of which avoided the important issue.
It reminds me of The Simpsons episode in which Homer crashes the car while driving home drunk from Moe’s. The insurance investigator asks Homer: ‘And this ‘Moe’s’ place. What is that?’ Homer thinks really hard and says: ‘It’s a pornography store. I was buying pornography!’
"....and the journalist in the aircraft was not overly impressed by the ‘firmness’ of the landing."
Thank you Creampuff. It could only have been the only other person on the aircraft - a 20 something female journo from the local rag. Toller did not fly the landing and the landing was perfectly normal for a C208 on a 400 meter runway.
You should have read the question, and marked the significance of the word ‘if’. Instead, you jumped to a conclusion and made a number of entirely unjustified attacks on me.
I have not expressed a view, and will not express a view, on whether Mr Toller committed any breaches in the circumstances. After all, I may have a conflict of interest, and so it would not be appropriate for me to do so.
And Torres, you were the one who posted the link to the 'ancient history' in this thread!
The objective answer to the question (given your view) would have been: If the assumption was correct, the answer would be two. However, the assumption is not correct, so the answer is one.
If you could just pull back from this a little and take a deep breath, you wouldn’t need to make personal attacks on me to make your point.
I’ve tried to explain that a conflict of interest is not a criticism of a lawyer’s ethics, integrity or professionalism, but you appear to have taken it that way.
Canst hear the voice of Eliza now, a faint backdrop?
Words! Words! I'm so sick of words!
I get words all day through;
First from him, now from you! Is that all you blighters can do?
Don't talk of stars Burning above; If you're in love,
Show me! Tell me no dreams
Filled with desire. If you're on fire,
Show me! Here we are together in the middle of the night!
Don't talk of spring! Just hold me tight!
Torres
From my reading of procedings of the case concerning Coral Sea Airlines i believe they concluded the fact that a flight is pre arranged, to operate at some future time (ie tomorrow) is sufficient to make it a scheduled flight, over a specified route.
Nearly all charter flights are arranged this way.
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