Policy is not law – AAT buckets CASA decision
Creampuff:
With respect, you are implying that what is required by way of procedures to produce safe outcomes in an organisation of of some 35,000 staff (ie qantas) is the same as what is required to produce safe outcomes in an organisation with perhaps Thirty Five members.
I say again, this is lunacy. In a Two or Three pilot organisation, I can replicate the outcome of a safety system over the bar in the pub. To say, let alone believe, otherwise is BS, and you know it.
What we have here is a fork between what is required by way of regulation to keep aviation safe, and what is actually required by way of action to keep aviation safe.
I have no doubt that there are evil operators that CASA should shut down. However I think CASA should adopt the precautionary principle.
To put it another way, I have to spend a few hours of my valuable time tomorrow getting "accredited" on a crane I have been using for Twenty something years.
I am fast running out of enthusiasm for continuing to pursue recreational aviation activities. There are too many wankers, it appears, in this occupation and that includes the professionals at Qantas and perhaps elsewhere.
I'm beginning to think there are better places to spend my money, not that would or should influence CASA.
You are implying that they operate to lower safety standards that RPT operators.
It's not an implication. It's a fact. That's one of the consequences of the distinction between RPT and Charter.
It's not an implication. It's a fact. That's one of the consequences of the distinction between RPT and Charter.
I say again, this is lunacy. In a Two or Three pilot organisation, I can replicate the outcome of a safety system over the bar in the pub. To say, let alone believe, otherwise is BS, and you know it.
What we have here is a fork between what is required by way of regulation to keep aviation safe, and what is actually required by way of action to keep aviation safe.
I have no doubt that there are evil operators that CASA should shut down. However I think CASA should adopt the precautionary principle.
To put it another way, I have to spend a few hours of my valuable time tomorrow getting "accredited" on a crane I have been using for Twenty something years.
I am fast running out of enthusiasm for continuing to pursue recreational aviation activities. There are too many wankers, it appears, in this occupation and that includes the professionals at Qantas and perhaps elsewhere.
I'm beginning to think there are better places to spend my money, not that would or should influence CASA.
Originally Posted by aroa
So as the bum stated it was a commercial action that I did .. selling photos.. from a "safety" point of view, WTF has that got to do with CASA.
One can take photographs from an aircraft as a private operation, the conditions for that is set out in CAR 1988 2 (7)(d)(iv) "aerial photography where no remuneration is received by the pilot or the owner of the aircraft or by any person or organisation on whose behalf the photography is conducted".
By your own admission you were the “pilot”, and “any person or organisation on whose behalf the photography is conducted” receiving remuneration for what you were doing. Therefore it was not a private operation.
This would be no different to you taking some of your photographer friends up flying and getting them to pay for all the costs of the aircraft even if you did the flying for free. It is no longer a private operation.
The other cases you mention can be private operations see CAR 1988 2 (7) and (7A).
Originally Posted by Advance
And YES their staff conduct Aerial Work on a regular basis.
Originally Posted by Sunfish
I say again, this is lunacy. In a Two or Three pilot organisation, I can replicate the outcome of a safety system over the bar in the pub. To say, let alone believe, otherwise is BS, and you know it.
It is impossible to have "systems" in place just by discussing things in the bar at the pub."Systems" need to be documented, they may not be right, however what should done is that when the system breaks down, they should be reviewed, and fixed so that it does not happen again.
Nothing wrong with discussing organisations procedures down at the pub or any other venue, and even to come up with better ways of doings things. However whenever an operator changes their procedures, it should be documented, and that process should also be in the manuals.
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One can take photographs from an aircraft as a private operation
Are UAV owners taking photo's of "the enemy"without an AOC guilty of a strict liability offense?
If Dick takes photo's during his round the world helicopter flight, where it is OK everywhere else but Australia, but makes money from Australian magazines in Australia when he returns, guilty of a strict liability offense? Is the ALP, guilty of an offense of strict liability for taking photo's from a F-111 of the Franklin Dam and using them for political advertising?
Hang on a minute, does the RAAF have an AOC? Has the Commonwealth Government got an AOC?
Does CASA have an AOC that allows it to take "educational" photographs from a Navajo? (why do I ask, well they admitted to doing this in the Airtex matter).
Are they guilty of a strict liability offense?
If CASA started looking after the interests of the fare paying public instead of persecuting individuals on nebulous charges, just because they can, the whole place would be much better off.
Problem is it is run by fools.
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One can take photographs from an aircraft as a private operation, the conditions for that is set out in CAR 1988 2 (7)(d)(iv) "aerial photography where no remuneration is received by the pilot or the owner of the aircraft or by any person or organisation on whose behalf the photography is conducted".
Originally Posted by Frank Arouet
Are UAV owners taking photo's of "the enemy" without an AOC guilty of a strict liability offense?
Originally Posted by Frank Arouet
If Dick takes photo's during his round the world helicopter flight, where it is OK everywhere else but Australia, but makes money from Australian magazines in Australia when he returns, guilty of a strict liability offense?
Suggest you look up the word liable. I belive Dick Smith would have had everything above board, it is possible to structure such a flight as a private operation.
Originally Posted by Frank Arouet
Hang on a minute, does the RAAF have an AOC? Has the Commonwealth Government got an AOC?
Originally Posted by Frank Arouet
Does CASA have an AOC that allows it to take "educational" photographs from a Navajo? (why do I ask, well they admitted to doing this in the Airtex matter).
Originally Posted by Frank Arouet
If CASA started looking after the interests of the fare paying public instead of persecuting individuals on nebulous charges, just because they can, the whole place would be much better off.
Originally Posted by Brian Abraham
are you really trying to tell me that Joe/Jane Citizen can take a bunch of mates for a private flight, and if some passenger, unknowningly to the pilot, has a camera and takes a photo with which they (the passenger) subsequently manages to purloin for some dosh, the pilot is guilty of an offense?
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I take aroa's point in that purely from a safety perspective it should not matter if a flight is private or commercial - safe operation of an aircraft in theory should be clearly defined and applicable to any operation. Naturally things would scale with different operations and requirements, but the type of operation should not change the safety requirement.
That said, its been shown time and time again that when money gets involved, corners are cut and the fight between safety and making a buck comes down to the scruples of the operator. If common sense were common, you would not need regulation. History has shown that regulation is needed.
So in that case, where do you draw the line? If you say one operation because it is close to private, is small scale, maybe is not even the focus of the business should be excluded, what happens when a less scrupulous operator frames their operations around that loophole? When does it go from flying some cargo for a mate for a slab to a cheap freight operation with overstretched aircraft and pilots? And when that happens who is watching to ensure that the almighty dollar is not overriding common sense.
And in that respect I do think there needs to be a commercial aspect to safety regulation - by regulating commercial operations you have a framework and oversight to enforce safety standards. Maybe what is defined as "private commercial" needs some refining, but its a grey area and I think if you loosen it up you will have operations using those loopholes to push the boundaries.
Maybe dollars are the answer - an operation is private if it is a single person, not hired or hiring others and below a certain yearly income value. There should be something that gives scope for PPLs more certainty they are not in breach and maintains the spirit of a safety regulation. I don't think its a simple question to resolve though.
Just my 2c.
That said, its been shown time and time again that when money gets involved, corners are cut and the fight between safety and making a buck comes down to the scruples of the operator. If common sense were common, you would not need regulation. History has shown that regulation is needed.
So in that case, where do you draw the line? If you say one operation because it is close to private, is small scale, maybe is not even the focus of the business should be excluded, what happens when a less scrupulous operator frames their operations around that loophole? When does it go from flying some cargo for a mate for a slab to a cheap freight operation with overstretched aircraft and pilots? And when that happens who is watching to ensure that the almighty dollar is not overriding common sense.
And in that respect I do think there needs to be a commercial aspect to safety regulation - by regulating commercial operations you have a framework and oversight to enforce safety standards. Maybe what is defined as "private commercial" needs some refining, but its a grey area and I think if you loosen it up you will have operations using those loopholes to push the boundaries.
Maybe dollars are the answer - an operation is private if it is a single person, not hired or hiring others and below a certain yearly income value. There should be something that gives scope for PPLs more certainty they are not in breach and maintains the spirit of a safety regulation. I don't think its a simple question to resolve though.
Just my 2c.
But wait.... there's more
The prosecutor made the grand pronouncement to the court... and I quote..
"No person can take a photograph from an aeroplane in Australia without a CPL and an AOC"
WE know that's bullsh*t of course, but when CASA is on a roll any old BS will do. ( Wow, Is that right !, thinks the magistrate, this is serious.!)
What they dont say is that "bugger's muddle" Reg 206... which makes the act of photography for money, illegal.ie a crime... Is a) probably illegal in itself
since CASA cannot be a regulator of commerce, so states the Act... and b) it does not even fit the Government guidelines on what constitutes a crime.
And of course, where is the "safety" case, that is required to apply to a Reg, if you can do exactly the same thing for free.!!!
There isnt one, but dont let that get in the way of fcuking someones livelihood when they can flex their penile power muscle, while pretending to save the world from falling aeroplanes.
As a taxpayer, you may be interested to know that while CASA was wasting 10s of thousands of dollars ' in hot pursuit' of one solo PPL photographer ...
in FNQ over the same period there were 7 fatal light GA Charter accidents and 22 fatalites. And these are the people that claim that the safety of paying passengers is their primary concern. Dont make me laugh.!
So like much of CASA's convoluted Reg rubbish... it becomes a grey area that is only hauled out for some.
Yellow pages lists over 5000 Photographers - Aerial.. and only 5 of those had AOCs..!!
And there was one I spoke to, who did low level pics from a powered pararchute around a city in controlled airspace.! He also flew hard stuff and had a CPL .. but no AOC.
But that's CASA for ya... different strokes for different folks.!
They might use the aurgument that they all hire an aeroplane from a Charter Co. with an AOC and a CPL. But they wouldnt know wtf they do....see above prosecutors comment... its just the crap of the day.
Until there is serious political will to drag CASA into the 21st century,
with a set of Regs for the Industry, by the Industry, that will allow the industry to flourish, GA is on the slippery slope to nowhere.
Currently,CASA is like the dropped bedpan in the hospital.. who wants to clean it up.?
"No person can take a photograph from an aeroplane in Australia without a CPL and an AOC"
WE know that's bullsh*t of course, but when CASA is on a roll any old BS will do. ( Wow, Is that right !, thinks the magistrate, this is serious.!)
What they dont say is that "bugger's muddle" Reg 206... which makes the act of photography for money, illegal.ie a crime... Is a) probably illegal in itself
since CASA cannot be a regulator of commerce, so states the Act... and b) it does not even fit the Government guidelines on what constitutes a crime.
And of course, where is the "safety" case, that is required to apply to a Reg, if you can do exactly the same thing for free.!!!
There isnt one, but dont let that get in the way of fcuking someones livelihood when they can flex their penile power muscle, while pretending to save the world from falling aeroplanes.
As a taxpayer, you may be interested to know that while CASA was wasting 10s of thousands of dollars ' in hot pursuit' of one solo PPL photographer ...
in FNQ over the same period there were 7 fatal light GA Charter accidents and 22 fatalites. And these are the people that claim that the safety of paying passengers is their primary concern. Dont make me laugh.!
So like much of CASA's convoluted Reg rubbish... it becomes a grey area that is only hauled out for some.
Yellow pages lists over 5000 Photographers - Aerial.. and only 5 of those had AOCs..!!
And there was one I spoke to, who did low level pics from a powered pararchute around a city in controlled airspace.! He also flew hard stuff and had a CPL .. but no AOC.
But that's CASA for ya... different strokes for different folks.!
They might use the aurgument that they all hire an aeroplane from a Charter Co. with an AOC and a CPL. But they wouldnt know wtf they do....see above prosecutors comment... its just the crap of the day.
Until there is serious political will to drag CASA into the 21st century,
with a set of Regs for the Industry, by the Industry, that will allow the industry to flourish, GA is on the slippery slope to nowhere.
Currently,CASA is like the dropped bedpan in the hospital.. who wants to clean it up.?
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Sunfish, Yup, and it appears Yachtsmen have been infinitely more successful in keeping regulators in line than aviators.
This is because Yachting Australia is a representative body for Yachtsmen/women and conducts itself inside International Regulation ISAF for the good of the sport.
Given the top end of the sport is now mostly professional sailors it would be really difficult to argue there is significant difference from General Aviation.
A 50 foot ocean racing boat costs the best part of $2.0 million in Carbon and is capable of cross oceanic sailing.
The Yachting Australia rule book ( compliant with International Regulations ) and the safety rules, medical/ 1st aid rules as well as the Racing rules of Sailing is the "Blue Book" re issued every 3 years and is a concise 30 mm thick.
Fundamental difference from Aviation where the rules are a couple of hundred mm thick and in the main meaningless.
This is because Yachting Australia is a representative body for Yachtsmen/women and conducts itself inside International Regulation ISAF for the good of the sport.
Given the top end of the sport is now mostly professional sailors it would be really difficult to argue there is significant difference from General Aviation.
A 50 foot ocean racing boat costs the best part of $2.0 million in Carbon and is capable of cross oceanic sailing.
The Yachting Australia rule book ( compliant with International Regulations ) and the safety rules, medical/ 1st aid rules as well as the Racing rules of Sailing is the "Blue Book" re issued every 3 years and is a concise 30 mm thick.
Fundamental difference from Aviation where the rules are a couple of hundred mm thick and in the main meaningless.
I have some sympathy with Sgt. Bundy's comments about safety going out the window when serious money making is involved. However there must be a better way of regulating Aviation then criminalising all activity and then setting out exemptions?
Bloody stupid this. If I got around to it and posted on a website all the photoes and details of all the aerodromes in Victoria...I would get into trouble with CASA because I...a PPL...took photoes out of the windscreen of an obviously airbourne aeroplane...and published them on the web?
Or...posting happysnaps from within a formation flight of warbirds?
Or....worse still...THE best repository of downunder aerial and aviation rerlated photography on this site is a breach under the regs because whilst it is free for us to peruse said photoes someone...the site owner is making money off selling advertising that is derived from said visits from us perusors????......Bludy rediculous!
Or...posting happysnaps from within a formation flight of warbirds?
Or....worse still...THE best repository of downunder aerial and aviation rerlated photography on this site is a breach under the regs because whilst it is free for us to peruse said photoes someone...the site owner is making money off selling advertising that is derived from said visits from us perusors????......Bludy rediculous!
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swh;
I find it amusing that you would take my example/ question and accuse me of having no supporting evidence.
Who needs evidence if we are exploring a hypothetical?
As for the thread topic my focus was on the simple fact that CASA have demonstrated they work on premise of "how can we stop this happening" when they should be asking themselves "how can we make this happen".
Does a traveling Vet need an AOC to use his own aeroplane to attend rural clients? After all it is a commercial operation is it not. What would CASA do to Flynn of the inland today. We can't have Doctors flitting around the countryside can we.
I find it amusing that you would take my example/ question and accuse me of having no supporting evidence.
Who needs evidence if we are exploring a hypothetical?
As for the thread topic my focus was on the simple fact that CASA have demonstrated they work on premise of "how can we stop this happening" when they should be asking themselves "how can we make this happen".
Does a traveling Vet need an AOC to use his own aeroplane to attend rural clients? After all it is a commercial operation is it not. What would CASA do to Flynn of the inland today. We can't have Doctors flitting around the countryside can we.
Is it still the case that tourist tandem parachute operations don't require an AOC and can be conducted by someone on a PPL?
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Only insofar as the aircraft and pilot side of the operations.
And not only that...
A PPL skydiving pilot can actually earn a living from carrying pax that throw themselves out the door..! The skydiving company rounds up the paying jumpers and pays the PPL to go fly the plane. Its a sport activity. And not with out its hazards, either.
Someone from CASA! even wrote a letter to a newspaper asking how come a body dropper can be a PPL and you need a CPL to carry a box of crabs.?
Well, hullo...! why would you bother to ask?... CASA wrote the regs in the first place. Why not call it RPT?,..they're paying passengers and leave on a regular basis from the same terminal.
It depends on what word game you want to play ... about safety, generally
So when many people are involved you can have a thriving business, but if you are on yr own with a camera, you cant.
Having regs that need exemptions means its poorly thought out and probably badly written.
Its a problem with the legal wallies and reg writers, as non practicing
aviators there's little or no consideration to the downstream implications that the reg may produce. And if it has a safety implication or not, do they care?
No matter , it just becomes part of the Great Pile, where in "unique" Oz, we can have 350 pages covering something that in NZ or the US is 30 something.
Good for empire building and PS employment, bad for GA.
Ozbusdriver... I have heard of someone just back from a formation photo-sortie, being bailed up by a tarmac trawler, and threatened with prosecution.
His response to that was.. see you in court. And nothing ever eventuated.
If you the photograher derived no remuneration from the pictures posted, not a problem. But even if you did... would that have made the sortie any LESS SAFE. NO... but it would have been in breach of a "safety" (sic) reg... and you would have thus committed a criminal act, and when convicted, given you a criminal record.. which has downstream repercussions of its own.
A Clever Country... or a Really Really Stupid one? Its a no-brainer
Someone from CASA! even wrote a letter to a newspaper asking how come a body dropper can be a PPL and you need a CPL to carry a box of crabs.?
Well, hullo...! why would you bother to ask?... CASA wrote the regs in the first place. Why not call it RPT?,..they're paying passengers and leave on a regular basis from the same terminal.
It depends on what word game you want to play ... about safety, generally
So when many people are involved you can have a thriving business, but if you are on yr own with a camera, you cant.
Having regs that need exemptions means its poorly thought out and probably badly written.
Its a problem with the legal wallies and reg writers, as non practicing
aviators there's little or no consideration to the downstream implications that the reg may produce. And if it has a safety implication or not, do they care?
No matter , it just becomes part of the Great Pile, where in "unique" Oz, we can have 350 pages covering something that in NZ or the US is 30 something.
Good for empire building and PS employment, bad for GA.
Ozbusdriver... I have heard of someone just back from a formation photo-sortie, being bailed up by a tarmac trawler, and threatened with prosecution.
His response to that was.. see you in court. And nothing ever eventuated.
If you the photograher derived no remuneration from the pictures posted, not a problem. But even if you did... would that have made the sortie any LESS SAFE. NO... but it would have been in breach of a "safety" (sic) reg... and you would have thus committed a criminal act, and when convicted, given you a criminal record.. which has downstream repercussions of its own.
A Clever Country... or a Really Really Stupid one? Its a no-brainer
Sunfish
The regulatory standards applicable to RPT are different, and in most cases higher, than the regulatory standards applicable to Charter, irrespective of the size of the organisations.
That’s why the questions as to what’s Charter and what’s RPT (and, what’s Aerial Work and what’s Private) are so controversial.
That’s one of the reasons ‘little’ operators try to squeeze every drop of legal blood out of the definition of Charter in CAR 206, and CASA frequently tries to work out whether a ‘charter’ operation is really an RPT operation.
That’s why Commissioner Staunton recommended CAR 206 be urgently reviewed … 15 or so years ago.
Forget the size of the organisation. Let’s take equally sized organisations: one is authorised to conduct Charter and not RPT, and the other is authorised to conduct RPT.
The RPT operator will be obliged to have an approved system of maintenance and an approved maintenance controller for each aircraft operated in RPT; the Charter operator won’t be obliged to have either (unless the aircraft is already transport category – unlikely at the small end of town).
The aircraft operated by RPT operators will in most cases be built to higher airworthiness and performance standards than most of the aircraft operated by Charter operators. This is a whole world of regulatory pain about which Gaunty might like to opine.
The pilots flying RPT routes will have to be checked, on the routes authorised to be flown, before the pilots are inflicted on fare paying passengers; the pilots flying Charter won’t necessarily have ever flown the route before fare paying pax get on board (and in some cases, this is one of the conundrums facing regulators: by definition, an operator might be asked to take someone on a route the operator hasn’t been before).
The aerodromes to which RPT aircraft operate have to be certified to a higher standard than the aerodromes to which Charter aircraft are permitted to operate. (Again, a conundrum facing regulators: how to get people to places that haven’t been certified to that standard.)
So please Sunfish, come to grips with this fact: A punter walking on to a Charter aircraft flying from A to B is walking into an operation that is subject to lower regulatory standards than a punter walking into an RPT aircraft flying from A to B. It might be that the actual standards met by both operations are the same, and that both operators will get punters from A to B alive, but that outcome would be the result of a mere coincidence, not regulatory standard equivalence.
The regulatory standards applicable to RPT are different, and in most cases higher, than the regulatory standards applicable to Charter, irrespective of the size of the organisations.
That’s why the questions as to what’s Charter and what’s RPT (and, what’s Aerial Work and what’s Private) are so controversial.
That’s one of the reasons ‘little’ operators try to squeeze every drop of legal blood out of the definition of Charter in CAR 206, and CASA frequently tries to work out whether a ‘charter’ operation is really an RPT operation.
That’s why Commissioner Staunton recommended CAR 206 be urgently reviewed … 15 or so years ago.
Forget the size of the organisation. Let’s take equally sized organisations: one is authorised to conduct Charter and not RPT, and the other is authorised to conduct RPT.
The RPT operator will be obliged to have an approved system of maintenance and an approved maintenance controller for each aircraft operated in RPT; the Charter operator won’t be obliged to have either (unless the aircraft is already transport category – unlikely at the small end of town).
The aircraft operated by RPT operators will in most cases be built to higher airworthiness and performance standards than most of the aircraft operated by Charter operators. This is a whole world of regulatory pain about which Gaunty might like to opine.
The pilots flying RPT routes will have to be checked, on the routes authorised to be flown, before the pilots are inflicted on fare paying passengers; the pilots flying Charter won’t necessarily have ever flown the route before fare paying pax get on board (and in some cases, this is one of the conundrums facing regulators: by definition, an operator might be asked to take someone on a route the operator hasn’t been before).
The aerodromes to which RPT aircraft operate have to be certified to a higher standard than the aerodromes to which Charter aircraft are permitted to operate. (Again, a conundrum facing regulators: how to get people to places that haven’t been certified to that standard.)
So please Sunfish, come to grips with this fact: A punter walking on to a Charter aircraft flying from A to B is walking into an operation that is subject to lower regulatory standards than a punter walking into an RPT aircraft flying from A to B. It might be that the actual standards met by both operations are the same, and that both operators will get punters from A to B alive, but that outcome would be the result of a mere coincidence, not regulatory standard equivalence.
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Creamie you waffle on about the "Regulatory" differences between charter and RPT, when in reality it is by and large regulatory "Piffle", has very little to do with "Safety" and just puts up "regulatory" road blocks to impede "Commerce" and costs everyone a fortune for no measurable improvement in Safety.
To CASA, get off your collective asses, piss off the lawyers and write regulations, preferrably in less than a million pages, that an ordinary person can understand and comply with, that meets worlds best practice, complies with ICAO, and follows what your government required you to do 20 odd years ago. You corrupt assh..les have blown hundreds of millions of taxpayers money to achieve nothing, Jeez people complain about the BER, you guys leave them for dead,and we still have a third world safety record.
If you are incapable of that, then get out of the game and lets subcontract Australian oversight to a "Competent" Authority, PNG comes to mind, or maybe the FAA would take it on, the savings we could put to reducing the national debt and we just might have an aviation Industry again.
To CASA, get off your collective asses, piss off the lawyers and write regulations, preferrably in less than a million pages, that an ordinary person can understand and comply with, that meets worlds best practice, complies with ICAO, and follows what your government required you to do 20 odd years ago. You corrupt assh..les have blown hundreds of millions of taxpayers money to achieve nothing, Jeez people complain about the BER, you guys leave them for dead,and we still have a third world safety record.
If you are incapable of that, then get out of the game and lets subcontract Australian oversight to a "Competent" Authority, PNG comes to mind, or maybe the FAA would take it on, the savings we could put to reducing the national debt and we just might have an aviation Industry again.
Thread Starter
36. The only remaining issue with CAR 206(1)(b) is whether the circumstances in which Caper carries passengers and or cargo to Bathurst Island fall within the description: in which accommodation in the aircraft is not available for use by persons generally. This expression is to be distinguished from that used in CAR 206(1)(c) which is: the purpose of transporting persons generally, or transporting cargo for persons generally. These two adverbial clauses have been the cause of numerous disputes regarding the distinction which should be drawn between RPT and charter operations. Both clauses are governed by the word generally, an adverb. The word generally is defined as:
1. usually. 2. without considering details; broadly. 3. as a whole; collectively. (Chambers 21st Century Dictionary)
3. In a general sense or way; as opp. to specially. (The Shorter Oxford English Dictionary)
An adverb is a word which describes or adds to the meaning of a verb, adjective or another adverb. It does not qualify or add meaning to a noun, such as the word person or persons. As the authors of the text The World Book of Word Power (1991) Volume 1 state:
37. Having explained some elementary rules of grammatical construction, it should be apparent that the first clause (CAR 206(1)(b)(ii)) means that a closed charter is one in which accommodation on the aircraft must not be available to those people who are only using the aircraft to travel from destination A to destination B. Such persons do not have a common purpose for travel to destination B. Their reasons for using the aircraft are simply to arrive at a common destination and then to undertake any variety of individual activities depending upon what each passenger had in mind was the purpose of his or her travel.
38. To fall within the closed charter provision under CAR 206(1)(b)(ii), those persons who travel to a destination terminal must all have the same special purpose for travelling to that destination. In my opinion, that is what distinguishes a closed charter from RPT. For example, mining companies and off-shore oil companies in the north west of Western Australia operate charter flights to and from Perth for their employees on a regular basis. All of the persons on board those charter aircraft are being transported to their destination terminal so that they can conduct their work for the company which has chartered the aircraft or an associated entity. Their purpose is common even though their occupations may vary. The company may also allow non-employees to utilise the transport, so long as the use bears some relationship to the work being undertaken by the company. Other than the common purpose for undertaking a flight, those persons who travel by closed charter may have no other relationship with their fellow travellers.
39. Unfortunately, I have not come across any material which would indicate that the two clauses I have referred to above in CAR 206 have undergone any proper analysis having regard to their grammatical construction. It therefore comes as no surprise to me that the interpretation of those clauses by CASA, and by Tribunals and Courts, may not be in accordance with the opinions I have expressed above. It seems to me that this has led to distinctions being drawn between certain operations which, not only make no sense, but also have nothing whatsoever to do with aviation safety.
40. CASA has published what is described as Regulatory Policy regarding the classification and regulation of closed charter operations under CAR 206(1)(b)(ii). That policy document is signed by Mr John F McCormick, who is the Director of Aviation Safety. It was issued in July 2009 and reviewed in July 2010. It is properly described as Departmental Policy as distinct from Ministerial Policy. In its reasons for making the policy, CASA has indicated that the current distinction between charter and RPT will soon disappear and be replaced by one category, Passenger Transport. However, this has not yet occurred. The policy document purports to provide clear guidance on the classification of operations as closed charter or RPT and the limitations and condition which may necessarily be imposed on certain kinds of closed charter operations.
41. Quite correctly, CASA has identified that of all the elements which are required to support closed charter operation, the adverbial clause which I have analysed above has proven to be most problematic. CASA has also identified the problem of what it describes as the interposed entity. CASA describes the interposed entity as an entity placed between a charter operator and the passengers who travel on the aircraft. The interposed entity is said to sell individual portions of its accommodation on the aircraft to passengers. The policy document explains that the interposed entity may be unconnected with a charter operator and therefore the individual passengers who travel on such charters only have a contractual arrangement with the interposed entity, and not the charter operator. The policy document then states:
42. The policy document provides an example of charters which may genuinely be classified as charters, that is, although the passengers who fly are not necessarily the persons who have chartered the aircraft, the passengers will normally have a prior relationship involving elements other than the air travel. CASA cites the example of a church which organises regular trips for its congregants to a particular location for the purpose of attending religious retreats, where the attendance at the retreats is limited to church members exclusively. CASA considers those types of charters to fall with CAR 206(1)(b)(ii). CASA then expresses its concern about interposed entities in the following way:
Indeed, it is not unusual to find purportedly ‘closed’ groups that have been created solely for the purpose of providing a conduit through which members of the public (i.e., persons generally) might be funnelled onto an aircraft.
This statement clearly highlights the fact that CASA has mistakenly understood the adverb generally to qualify the noun persons. With the greatest respect, it cannot and it does not do that. It is simply a grammatical error to read the adverbial clause in that way. It is not surprising therefore that this has led to some remarkable contortions in reasoning when attempting to distinguish a genuine charter from RPT. CASA’s policy document provides the following example:
Even in otherwise straight-forward situations, problematic questions relating to the characterisation of the passenger group can arise. It is conceivable that a legitimately ‘closed’ group may consist of a large number of members. Conversely, a very small passenger group may well have a general and unrestricted membership. Demonstrably discrete, special and enduring characteristics shared by members of a group (e.g. hair colour) may have no real bearing on the propriety of characterising such a group as ‘closed’ for the purposes of classifying an aerial service operation. Characterisations based on arguably legitimate, social or economic purposes – for example, ensuring that members of remote communities are able to obtain the services of tradesmen on a regular and predictable basis; or facilitating visits of family and friends to miners located at a great distance from their homes for extended periods of time – may involve conflicting values. For example, while it surely a “good thing” to facilitate air travel to and from remote Aboriginal communities, it may not be such a good thing to allow what amounts to RPT services for members of those communities to be conducted at a reduced level of safety
43. What appears from CASA’s analysis of CAR 206(1)(b)(ii) is that unless the persons purportedly chartering an aircraft have some identifiable and close relationship, although that relationship may or may not be relevant for the purposes of characterising the charter, if the flight is conducted in accordance with fixed schedules and between fixed terminals, it is an RPT operation. That, in an unexplained way, is said to reduce the level of safety. Quite plainly, this makes no sense. Whether the passengers who fly on these aircraft have some pre-existing relationship makes no difference to the safety of that operation. If CASA’s concern is with the numbers of passengers carried or the frequency of flights, it can impose conditions on an AOC under s 28BB of the Act.
1. usually. 2. without considering details; broadly. 3. as a whole; collectively. (Chambers 21st Century Dictionary)
3. In a general sense or way; as opp. to specially. (The Shorter Oxford English Dictionary)
An adverb is a word which describes or adds to the meaning of a verb, adjective or another adverb. It does not qualify or add meaning to a noun, such as the word person or persons. As the authors of the text The World Book of Word Power (1991) Volume 1 state:
37. Having explained some elementary rules of grammatical construction, it should be apparent that the first clause (CAR 206(1)(b)(ii)) means that a closed charter is one in which accommodation on the aircraft must not be available to those people who are only using the aircraft to travel from destination A to destination B. Such persons do not have a common purpose for travel to destination B. Their reasons for using the aircraft are simply to arrive at a common destination and then to undertake any variety of individual activities depending upon what each passenger had in mind was the purpose of his or her travel.
38. To fall within the closed charter provision under CAR 206(1)(b)(ii), those persons who travel to a destination terminal must all have the same special purpose for travelling to that destination. In my opinion, that is what distinguishes a closed charter from RPT. For example, mining companies and off-shore oil companies in the north west of Western Australia operate charter flights to and from Perth for their employees on a regular basis. All of the persons on board those charter aircraft are being transported to their destination terminal so that they can conduct their work for the company which has chartered the aircraft or an associated entity. Their purpose is common even though their occupations may vary. The company may also allow non-employees to utilise the transport, so long as the use bears some relationship to the work being undertaken by the company. Other than the common purpose for undertaking a flight, those persons who travel by closed charter may have no other relationship with their fellow travellers.
39. Unfortunately, I have not come across any material which would indicate that the two clauses I have referred to above in CAR 206 have undergone any proper analysis having regard to their grammatical construction. It therefore comes as no surprise to me that the interpretation of those clauses by CASA, and by Tribunals and Courts, may not be in accordance with the opinions I have expressed above. It seems to me that this has led to distinctions being drawn between certain operations which, not only make no sense, but also have nothing whatsoever to do with aviation safety.
40. CASA has published what is described as Regulatory Policy regarding the classification and regulation of closed charter operations under CAR 206(1)(b)(ii). That policy document is signed by Mr John F McCormick, who is the Director of Aviation Safety. It was issued in July 2009 and reviewed in July 2010. It is properly described as Departmental Policy as distinct from Ministerial Policy. In its reasons for making the policy, CASA has indicated that the current distinction between charter and RPT will soon disappear and be replaced by one category, Passenger Transport. However, this has not yet occurred. The policy document purports to provide clear guidance on the classification of operations as closed charter or RPT and the limitations and condition which may necessarily be imposed on certain kinds of closed charter operations.
41. Quite correctly, CASA has identified that of all the elements which are required to support closed charter operation, the adverbial clause which I have analysed above has proven to be most problematic. CASA has also identified the problem of what it describes as the interposed entity. CASA describes the interposed entity as an entity placed between a charter operator and the passengers who travel on the aircraft. The interposed entity is said to sell individual portions of its accommodation on the aircraft to passengers. The policy document explains that the interposed entity may be unconnected with a charter operator and therefore the individual passengers who travel on such charters only have a contractual arrangement with the interposed entity, and not the charter operator. The policy document then states:
42. The policy document provides an example of charters which may genuinely be classified as charters, that is, although the passengers who fly are not necessarily the persons who have chartered the aircraft, the passengers will normally have a prior relationship involving elements other than the air travel. CASA cites the example of a church which organises regular trips for its congregants to a particular location for the purpose of attending religious retreats, where the attendance at the retreats is limited to church members exclusively. CASA considers those types of charters to fall with CAR 206(1)(b)(ii). CASA then expresses its concern about interposed entities in the following way:
Indeed, it is not unusual to find purportedly ‘closed’ groups that have been created solely for the purpose of providing a conduit through which members of the public (i.e., persons generally) might be funnelled onto an aircraft.
This statement clearly highlights the fact that CASA has mistakenly understood the adverb generally to qualify the noun persons. With the greatest respect, it cannot and it does not do that. It is simply a grammatical error to read the adverbial clause in that way. It is not surprising therefore that this has led to some remarkable contortions in reasoning when attempting to distinguish a genuine charter from RPT. CASA’s policy document provides the following example:
Even in otherwise straight-forward situations, problematic questions relating to the characterisation of the passenger group can arise. It is conceivable that a legitimately ‘closed’ group may consist of a large number of members. Conversely, a very small passenger group may well have a general and unrestricted membership. Demonstrably discrete, special and enduring characteristics shared by members of a group (e.g. hair colour) may have no real bearing on the propriety of characterising such a group as ‘closed’ for the purposes of classifying an aerial service operation. Characterisations based on arguably legitimate, social or economic purposes – for example, ensuring that members of remote communities are able to obtain the services of tradesmen on a regular and predictable basis; or facilitating visits of family and friends to miners located at a great distance from their homes for extended periods of time – may involve conflicting values. For example, while it surely a “good thing” to facilitate air travel to and from remote Aboriginal communities, it may not be such a good thing to allow what amounts to RPT services for members of those communities to be conducted at a reduced level of safety
43. What appears from CASA’s analysis of CAR 206(1)(b)(ii) is that unless the persons purportedly chartering an aircraft have some identifiable and close relationship, although that relationship may or may not be relevant for the purposes of characterising the charter, if the flight is conducted in accordance with fixed schedules and between fixed terminals, it is an RPT operation. That, in an unexplained way, is said to reduce the level of safety. Quite plainly, this makes no sense. Whether the passengers who fly on these aircraft have some pre-existing relationship makes no difference to the safety of that operation. If CASA’s concern is with the numbers of passengers carried or the frequency of flights, it can impose conditions on an AOC under s 28BB of the Act.
The above is an extract from AAT Senior Member Fice's judgement.
It really is a good idea to read read the whole judgement, he goes into the history of this area of regulation back to 1947, to show it is all about limiting commercial competition, and nothing to do with satisfactory standards of operation of the aircraft --- and not just an argument about interpretations of grammatical construction.
Tootle pip!!
PS: In the US, things like aerial photography, cloud seeding etc., generally where no passengers are carried for hire and reward, aircraft operate just under Part 91, General Operating and Flight Rules.
Large slabs of our "safety" regulation had their origins in regulating commercial operations, a legacy of DCA days, and nothing to do with "safety", but once they are on the books, it is very difficult to get rid of them, no bureaucracy ever gave up power without a fight.