PPRuNe Forums - View Single Post - A new concept: air transport operations that are not air transport operations
Old 6th Feb 2023, 22:33
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Clinton McKenzie
 
Join Date: Mar 2000
Location: Canberra ACT Australia
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No legislative drafter in CASA or OPC made the unilateral decision to add paragraph (e) to CASR 119.010(1). And CASR 119.010(1) is “perfectly easy reading and understandable” on its face. Is anyone confused by what it says?

The convoluted complexity is created by what paragraph (e) purports to do and the way it does it in the context of the rest of the regulations. You now have to look at two places – the CASR Dictionary and the Part 119 MOS – to work out whether your aeroplane or rotorcraft operation is an Australian air transport operation as defined in CASR 119.010. And putting sentences in a MOS is much easier for CASA to do than getting a change to the regulations.

Someone instructed the drafters to add a provision to the effect of paragraph (e) because that someone reckoned it would be a ‘good idea’ for CASA to have the power to expand the scope of the application of Part 119 at any time, by simply putting sentences in the Part 119 MOS. That ‘someone’ and many others have been left to their own devices in CASA for decades and encouraged to continuously build a regulatory regime that includes these kinds of mechanisms that enable them to, in effect, change the rules to implement their strongly-held opinions about what the safety of navigation requires from time to time. It’s also why the rules require so many certificates and licences and permissions and approvals and exemptions and so on, with the consequential unavoidable interactions with the regulator (and, of course, the payment of a fee).

This outcome is completely unsurprising when a regulator is left to run the process that produces most of the rules which determine so much of the regulator’s own powers in the rules. Great from the regulator’s perspective; not so great from the powerless regulated’s perspective nor – and let me be naively quaint – a rule of law perspective. What are the rules of the game, the dimensions of the field and the position of the goal posts for powerless aviation participants next year? Whatever the regulator decides.

[OPC] are the people who turn the perfectly easy reading and understandable regulations that are drafted by CASA SMEs, into the legal verbiage that most normal people cannot understand unless they have done a law degree…
With respect, Duck, one merely needs to read various threads in this forum to see that lots of people struggle with written English. But let’s assume these SMEs are good at written English.

I’m sure that, in their mind, these SMEs wrote “perfectly easy reading and understandable regulations”. And they may well have been, in isolation from the whole of the rules into which they are going to plonked (though I must say that my invariable experience, when discussing these kinds of drafts with SMEs, is that a few ‘what if’s?’ and ‘did you really mean that’s?’ and ‘you realise that that word is defined to mean’s?’ resulted in lots of brow furrowing and revision). But the fact is that no bunch of words is a law in isolation.

Last edited by Clinton McKenzie; 6th Feb 2023 at 22:47.
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