Merged: CASA Regulatory Reform

[blackhand]

It appears the regulations need to be in Braille, not English.

[Kharon]

CP - Godwin’s Law proved again.

Finally, they got one that works. That just leaves us how many to go. Oh, I give up but it's lots and lots.

[Sunfish]

You don't seem to understand very much at all Blackhand.

The regulations are not written "in plain English".

The regulations do not "mean what they say".

This AAT decision demonstrates how one or more CASA staff perverted the meaning of the word "generally" in one of many perverse and badly written regulations to cause misery and expense to a number of operators. Anyone like to work out how much this has cost the industry?

Caper Pty Ltd T/a Direct Air Charter and Civil Aviation Safety Authority [2011] AATA 181 (21 March 2011)

CASA contended that Caper, contrary to its AOC, was conducting RPT operations between Darwin and Bathurst Island. CASA claimed that Caper's operation did not fall within the description of charter operations in either CAR 206(1)(b)(i) or (ii). That was because those operations were in accordance with fixed schedules, to and from fixed terminals, for the purpose of transporting persons or cargo generally.

Although I have found that Caper operated between Darwin and Bathurst Island in accordance with fixed schedules, to and from fixed terminals, that operation does not fall under the definition of RPT. That is because the accommodation on Caper's aircraft in that operation is not available for use by persons generally. In my opinion, reading the adverbial clause in CAR 206(1)(b)(ii) in accordance with its grammatical construction makes it clear that the word generally qualifies the adjective available and not the noun persons. In other words, an operation is a charter operation where accommodation in the aircraft is not generally available for use by persons. The adverb, generally, cannot qualify or modify the noun persons. Unfortunately, it appears that this is the way in which the expression has been understood by CASA. It has resulted in attempts to distinguish charter from RPT on a basis which makes no sense and is not related to the safety of air navigation. In my opinion, the correct way in which CAR 206 should be understood will alleviate those problems.

I have also briefly examined the validity of CAR 206(1)(b) in general. I have found that because that regulation is merely concerned with definitions, it has been lawfully made under s 98 of the Act. Unlike the earlier Air Navigation Regulations dealing with the licensing of air operations, following the commencement of the 1988 Act, s 28 is where CASA derives its power to control the commercial operations of AOC holders. Those matters are no longer dealt with under the regulations.

I find that the decision made by CASA on 7 September 2010 to cancel one of the authorisations contained in Caper's AOC in respect of its operations between Darwin and Bathurst Island for the purpose of conducting the Tiwi Islands tours was incorrect. I set aside that decision and instead determine that the conditions on Caper's AOC should remain unaltered. Caper should be permitted to continue with its charter operations between Darwin and Bathurst Island.

........And of course the good member Fice, cannot rule on whether this was malicious or just stupidity.

[Defenestrator]

CASA appealed this decision and won. Saw the document. Interesting times ahead for all chaRPT operators.

[Horatio Leafblower]

Interesting times ahead for all chaRPT operators.

Can you name one, just one, sham charter/RPT operator?

[Up-into-the-air]

casa appeal

Do you have a reference DEF

CASA appealed this decision and won. Saw the document. Interesting times ahead for all chaRPT operators.

[Creampuff]

Civil Aviation Safety Authority v Caper Pty Ltd [2012] FCA 1213 (2 November 2012)

[Up-into-the-air]

casa and the use of the Courts

The reference for all to see is:

Civil Aviation Safety Authority v Caper Pty Ltd [2012] FCA 1213 (2 November 2012)

[Horatio Leafblower]

So by my reading of that, every scenic operation in Australia has just been shut down.

...Creampuff? Would you agree?

[601]

I would like to see an interpretation of carriage in a aircraft from a fixed terminal to a fixed terminal in which the seats are sold on a individual basis and that the flights are available from 08:00 until 17:00 daily.

HL, sorry about that, I should refresh before adding a post. It took a while to read the decision.

[Horatio Leafblower]

The next level of air operation is charters - both open and closed - as described in subregs 206(1)(b)(i) and (ii). These types of operation attract a higher level of regulatory attention. The risk to the public in such charter operations is limited in different ways in each category.

In an open charter, carriage of the general public is contemplated but only if it is not to be performed on a fixed schedule to and from fixed terminals.

In a closed charter, carriage may be undertaken on a fixed schedule to and from fixed terminals but the general public may not be carried. Whatever risks the passengers are exposed to in a closed charter, those risks are confined to a closed group.

So it would appear that, like all things, it is all a matter of timing. For a Bungles or Lake Eyre flight it is a matter of simply waiting for the punters to rock up, and go when they are ready. No more the massed first-light departures of 206s and 207s from KNX it seems.

What about longer trips, like the Belray tours through Argyle Diamond Mine? The inclusion of "lunch" in the price would appear to infer the operator is setting a schedule, would it not?

[Sunfish]

A quick read of the decision shows us the problem. The learned judges have taken note of the purpose of the act - to prevent accidents. One way to do this, consistent with the act, is to prevent aviation entirely. There is no modifying clause such as "consistent with reasonable commercial endeavors" or suchlike.

So the judges at about sect 51 have simply said that the law requires interpretation with regard to the purpose of the act, and if CASA interprets capers operation as RPT then that trumps the grammatical interpretation used by the tribunal.

To put it another way, words mean what CASA say they mean, not what you think they mean.

[blackhand]

So by my reading of that, every scenic operation in Australia has just been shut down.

Perhaps not, fixed terminal to nother terminal maybe, once round the block and land at starting point is air work.
The Judgement wasn't about the regs, it was about the AATs incorrect grammatical interpretation of the single words rather than the whole sentence.

[Stan van de Wiel]

Empty skies are safe skies - nearly there

I find it strange that in the Caper decision no mention was made of the second reading of the Bill by Dept P.M Anderson in 1998 - it refers to CASA having a Safety role and not a Commercial one. All reference to Commercial to be removed? Wouldn't such a direction ( Acts Interpretation Act 1901) be an Original Intent overriding most that went before.

In their submission to the Court CASA have established that Charter is much more dangerous than RPT with a similar aircraft. Having established this in Court, why have they let Charter flying continue knowing it is so unsafe. Once this was discovered over 14 years ago, why didn't they immediately ground all Charter operators. I know of several cases where a Charter flight ended with fatal outcome. Does this make CASA complicit ? Any thoughts?

I conducted RPC note not RPT for nearly a year, halfway through my AOC was even renewed. When the interposed entity was changed to another, the whole of the operation became unsafe??? overnight, same pilots, same aircraft why didn't Caper use this approval ? Same situation even condoned by OLC and the CDPP.

The inter office emails soon to be released!

Stan

[Sunfish]

Blackhand, I am an occasional SCUBA diver. I always dive with a world renowned live aboard dive operator out of Cairns.

That dive tour operator advertises that a highlight part of the Seven to Ten day trip to the barrier reef and beyond is a flight either to or from Lizard Island and Cairns over the reef itself to meet or leave the boat.

These flights used to be conducted in a "convoy" in Two or Three Twins as they were the largest to land on Lizard.

Now these are RPT? The "airline" component of the price of the trip is derisory, your bar bill is bigger.

Furthermore, I question the issue of "schedule" in the case of Mike Ball Diving, and Kings the schedule is theirs, not the "airline". I wonder if the Judges might like to consider this matter?

[Creampuff]

I reckon both the AAT and the Federal Court have erroneous reasoning in their decisions, but I reckon the AAT’s is less wrong than the Federal Court’s.

But my opinion on the question is irrelevant: the Federal Court’s decision is binding unless successfully appealed or distinguished/overturned.

This is merely another example of many that have arisen – unnecessarily - from a chronically incompetent and therefore unproductive regulatory reform process.

FFS: Fix 206!

[Horatio Leafblower]

Rang my FOI to seek clarification on this one.

He seemed to infer that a "scenic" flight could occur from A back to A, but if you need to make a landing at an intermediate point before returning the same passengers to A "thats a bit too far to be a scenic flight".

Is there a new arm to the definition of RPT?
- persons generally
- to & from fixed terminals
- too far to do without refuelling.

Is it the company's place to suggest a departure time, or does that make it a fixed schedule?

Is it the company's place to suggest a route for a scenic flight, or does that make it "to and from fixed terminals"?

My FOI suggested that it will all be clearer in a couple of years. I am hugely relieved.

I could send (another) letter to my local member but I am pretty sure that a serial pest will be the one that gets the regulator's full attention!

[Stan van de Wiel]

Scenic Flights

He seemed to infer that a "scenic" flight could occur from A back to A, but if you need to make a landing at an intermediate point before returning the same passengers to A "thats a bit too far to be a scenic flight".

Did your FOI happen to define what that flight would then be classified as?

Several times a year Croydon Travel conduct scenic flights to Antarctica, as an interposed entity who don't appear to have an AOC but use Qantas aircraft this appears to meet the ($$$$$) requirements of the Regs. To the best of my knowledge Qantas don't have this route on their AOC. I'm not suggesting there is a safety issue, but why do they need Croydon Travel?

Another better example is Captains Choice. Flies to a schedule - fixed terminals - open to the public if you can afford it. But then it's not G.A. Stupid of me.

[blackhand]

Stan, from Croyden site - Flights aboard a privately chartered Qantas 747 are included and last approximately 12.5 hours.
Maybe because no refuel stop and once round the block, although is a big block

Sunfish - Now these are RPT? The "airline" component of the price of the trip is derisory, your bar bill is bigger.

Good question and after dealing with an FOI for four hours today, who I believe dropped a tab of LSD for breakfast, they could decide anything.

[Up-into-the-air]

casa and the effect on commercial operations

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.