The crux of the issue is this from CASA:
The operational and organisational arrangement contemplated by CASR 141 [and Part 142] are based on a conventional business model, under which all of the operational activities conducted by the authorisation holder are carried out, for and behalf of the authorisation holder by persons employed by, and in all respects as agents of, the authorisation holder.
From a regulatory perspective, and in the interests of safety, the essense of this model is that the authorisation holder is fully accountable under the applicable legislation, and is demonstrably able and willing to do everything that needs to be done to ensure that its safety-related legislative obligations are effectively fulfilled. As a matter of operational control, and integral to the very object of the authorisation[s] involved, CASA must be satisfied that all these considerations have been, and will continue to be, satisfied by the authorisation holder.
I note that, remarkably,
not a single legislative provision is cited to support that collection of motherhood statements. It is, in effect, merely an assertion about the 'vibe' of Parts 141 and 142.
Now it may be that CASA's opinon is correct. But it may not be. I don't understand why you didn't take them on to test the question. Of course CASA would, as usual, go into full air safety sophistry mode, but you might have jagged a judge or tribunal member who'd insist on legislative support for CASA's Wizard of Oz act.
In any event, that's why CASA wanted to:
- see clauses, in the contracts between APTA and its 'franchisees' - described by CASA as 'subordinate entities' - that 'contractually relinquish or subordinate what would otherwise be the kind of operational autonomy they might otherwise entertain [a very odd word, I must say...] (as a corporate entity with the potential to perform such functions on their own accord [another very odd word, I must say...] to the authorisation holder (APTA); and
- be convinced that those contractual arrangements were 'effectively implemented'.
If you accept or are otherwise not going to challenge CASA's assertions about the vibe of Part 142, it follows that you had to have contract arrangements in place to the above effect.
Your email of 18 February 2019 completely muddles what it was that CASA wanted to see in the contracts. That email says:
The correspondence dated 25 January had some text at the first dot point that commenced "the subordinate entities....." That text suggests that the Members actually have an approval or permission and are handing something over, when in fact they are not. The concern being that by signing they may be contractually tying themselves in more than they would like. i.e. "potential to perform such functions on their own accord" when in fact they don't.
You got it completely arse-about, Glen.
The text did
not suggest that the Members were getting an approval or permission. APTA was the only approval holder. That was precisely CASA's point.
If APTA was going to be the only approval holder, the Members had to contractually bind themselves to be operationally controlled by APTA, otherwise there was no way in which CASA could be satisfied that someone responsible for regulatory compliance (APTA) had control over the operational activities of the APTA Members.
The Members
were 'handing something over'. They were binding themselves to be operationally controlled by APTA. If the Members were not willing to do that and wanted to conduct operational activities 'on their own accord' - that is, not under the operational control of APTA - then each Member entity would have had to apply for and obtain its own, separate, Part 142 approval.
On CASA's view of Part 142, it was simple:
- the Members had to contractually bind themselves to be operationally controlled by APTA (and CASA required evidence of that), and
- APTA had to exercise that control effectively (and CASA required evidence of that).
Unless you are willing and able to take CASA on and win in an argument about the proper interpretation of Part 142, or you can produce copies of binding agreements, between APTA and its Members, with clauses to the effect required by CASA, I reckon it is, unfortunately, 'game over' for you from a regulatory perspective, Glen. It seems to me that your only path to any compensation lies in a negligent misstatement/equitable estoppel argument. That would require you to show that CASA encouraged you to believe that your model satisfied the applicable regulatory requirements
without clauses, in binding agreements between APTA and the Members, to the effect required by CASA.