The latest round of answers to my supplementary questions demonstrates to me that CASA’s complex and convoluted Heath Robinson contraption is (unsurprisingly) resulting in CASA confusing itself. I’ll chunk this up in an attempt to reduce the scope for further confusion and potential insanity.
Back on 24 Jan 23 I asked this question:
Would the subsidisation by Angel Flight Australia of the cost of the fuel I consume during a flight arranged by them constitute a “reward” in CASA’s opinion?
The first sentence of CASA’s answer to that question, given on 1 Feb 23, was:
CASA does not generally answer questions about other operator’s affairs or other operations.
That confused me. I accordingly asked this question on 2 Feb 23, with a preamble about the cause of my confusion:
I do not understand to whom the word “other” in the first sentence of your answer to question 1 refers: “CASA does not generally answer questions about other operator’s affairs or other operations.”
Question 1: If I put my hand up to conduct a flight for which Angel Flight has called for volunteers, aren’t I the “operator” conducting the “operations” for the purposes of that flight?
The answer CASA gave to that question on 15 Feb 23 was:
The implications of that answer obviously got the brains trust to thinking and that seems to have resulted in a HSM, because the answer to my question 2 said in part:
CASA is now aware that the amendment of section 7AA of CASA EX82/21 – Part 119 of CASR – Supplementary Exemptions and Directions Instrument 2021, on 24 December 2022 had the unintended consequence of treating certain flights as air transport operations again, and CASA is presently considering how to address that issue, which is likely to be by a further amendment to the exemption.
Oh dear. An amendment to an amendment required, due to insufficient attention to detail. And let’s pause to note that in 2023 CASA is continuing to regulate by (poorly thought through) exemptions, all of which was supposed to be a thing of the decades-ago past.
I was relieved by the confirmation that my search skills have not deteriorated. I couldn’t find the Part 119 MOS because, in answer to my question 3, CASA said:
CASA has not yet made a Part 119 MOS.
Another example demonstrating that the regulatory reform program is not complete. What is ‘complete’ is the assertion that it is: complete bull****.
The answers immediately above, and CASA’s answers to the remaining five questions demonstrate to me that they are doing a lot of ‘making stuff up’ on the run, to try to patch over the gaps in their Heath Robinson contraption. Here is the scenario I gave for the next two questions:
Scenario for questions 4 and 5: I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6, including the pilot seat. I have 3 passengers. I am not remunerated for the flight. The flight is not advertised to the general public. I bear the entirety of the direct costs of the flight.
Some of you will anticipate I used that scenario for very good reasons. Those reasons arise from the definition of a flight that is ‘cost-sharing’, the definition of ‘passenger transport operation’ and the definition of ’air transport operation’.
If a flight is a ‘cost-sharing’ flight, it is excluded from the definition of ‘passenger transport operation’ and, therefore, won’t be an ‘air transport operation’ (unless CASA pulls a swifty and prescribes them in the Part 119 MOS). Further, an operation that is not for ‘hire or reward’ is not an ‘air transport operation’,
even if the operation is a ‘passenger transport operation’ (unless CASA pulls a swifty and prescribes them in the Part 119 MOS or by instrument issued under CASR 201.025).
To try to keep confusion below insanity levels, I will quote the three definitions again, with underlining added:
Definition of passenger transport operation
(1) A passenger transport operation is an operation of an aircraft that involves the carriage of passengers, whether or not cargo is also carried on the aircraft.
(2) Despite subclause (1), an operation is not a passenger transport operation if the operation is:
(a) an operation of an aircraft with a special certificate of airworthiness; or
(b) a cost‑sharing flight; or
(c) a medical transport operation; or
(d) if the registered operator of an aircraft is an individual—an operation of the aircraft:
(i) that involves the carriage of that individual; and
(ii) does not also involve the carriage of other passengers; or
(e) if the registered operator of an aircraft is an individual—an operation of the aircraft:
(i) that involves the carriage of that individual; and
(ii) involves the carriage of other passengers; and
(iii) for which no payment or reward is made or given in relation to the carriage of the other passengers or cargo.
The key point to note is that if your operation falls within the scope of the definition of a ‘cost-sharing flight’, the operation is not a ‘passenger transport operation’.
The definition of a flight that is ‘cost-sharing’ is:
cost‑sharing: a flight is a cost‑sharing flight if:
(a) the flight is conducted using an aircraft with a maximum seat configuration of not more than 6, including the pilot’s seat; and
(b) the pilot in command is not remunerated for the flight; and
(c) the pilot in command pays an amount of the direct costs of the flight that is at least equal to the amount that would be paid by each person if the direct costs were evenly divided between all persons on board; and
(d) the flight is not advertised to the general public.
Example 1: For paragraph (c), if the direct costs of a flight are $3,000 and the flight has 5 persons on board, including the pilot, the pilot must pay at least $600 towards the direct costs.
Example 2: For paragraph (d):
(a) an advertisement in a daily national newspaper is an advertisement to the general public; and
(b) an advertisement in a flying club newsletter is not an advertisement to the general public.
The key points to note are, first, that the underlined element does not say anything about who - other than the pilot – must bear the direct costs of the flight. It says nothing about who else, if anyone, has to bear the balance, if any, of the direct costs. The second point – and the reason I said “if anyone” and “if any” in the last sentence – is that if the PIC meets the entirety of the direct costs of the flight, the PIC has literally paid an amount of the direct costs of the flight that is at least equal to the amount that would be paid by each person if the direct costs were evenly divided between all persons on board, and no further direct costs are borne by anyone.
Now let’s look at the scenario I gave again, and ‘plug’ the facts into the definition of a flight that is ‘cost-sharing’:
I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6 including the pilot seat – looks to me very much like a tick in (a) of the definition.
I have 3 passengers – the definition does not say anything about the number of POB, except for its relevance to the calculation of the amount of the fixed costs which the PIC must pay to satisfy (c)
I am not remunerated for the flight – looks to me very much like a tick in (b) of the definition.
The flight is not advertised to the general public – looks to me very much like a tick in (d) of the definition.
I bear the entirety of the direct costs of the flight – looks to me very much like a tick in (c) of the definition.
My question 4 to CASA was:
Do you comprehend that the flight in that scenario meets the definition of one that is “cost-sharing”?
Before providing the answer, I suggest you make sure you’re safely seated.
CASA’s answer to that was:
Double check that you’re still comfortably seated. Read the definition of ‘cost-sharing’ again and read the scenario again. Then read the question and CASA’s answer again. CASA reckons the scenario is
not a ‘cost-sharing’ flight.
My question 4 was:
Where is the hire and reward in that scenario?
CASA’s answer to that question was:
See previous answer.
Wait a second: CASA's answer to my question 5 of 24 January 2023 was: "Assuming the pilot receives no payment for the flight, the flights are a private operation because they are not conducted for hire or reward." In the scenario I gave above, the PIC pays for everything. No one pays the PIC anything. There is no way to coherently and credibly conjure PIC reward or remuneration out of the scenario.
CASA provided no reasoning to support either of its answers to my questions 4 and 5. I will make an educated guess as to why: The scenario caused the brains trust to have another HSM, any reasoning they were inclined to provide as to why the above scenario is not a ‘cost-sharing’ flight would have been pretty unconvincing, so best instead to just in effect assert it’s not. My guess is that they had a group frown and conjured some implication out of the word ‘sharing’ such that ‘someone else’ must at least ‘share’ ‘a bit’ of the direct costs. Problem solved for CASA because then CASA can also say the ‘bit’ ‘chipped in’ is ‘reward’ or, as we’ll see, even ‘remuneration’. (Alas, one problem solved on that on-the-run reasoning creates other problems for CASA...)
Even if it is correct in law to draw an implication out of the word ‘sharing’ such that ‘someone else’ must at least ‘share’ ‘a bit’ of the direct costs along with the PIC, it would be a distinction with no consequences for objective safety risk. So you’re
not a cost-sharing flight if you as PIC bear
all of the direct costs of the flight, and you must therefore get an AOC, but you
are a cost-sharing flight if someone chips in $1 for the direct costs and you as PIC bear the rest, and you therefore you do
not need an AOC.
Are you feeling all the safety oozing out of this?
Here's why I reckon they had an HSM: If the flight in the scenario is a cost-sharing flight – which I reckon it is – and is not a flight for hire or reward – I don’t reckon it is a flight for hire or reward - some ‘interesting’ consequences flow. For example, if I change just one element of the scenario – change the aircraft to one with a maximum seat configuration of 9 including the pilot seat – the result is that the flight is no longer one that satisfies the definition of ‘cost-sharing’. But that does
not turn the flight into one ‘for hire or reward’. I as PIC am still bearing the entirety of the direct costs of the flight. And if it’s not one for hire or reward, it’s not an ‘air transport operation’ (unless CASA pulls a swifty when it gets around to completing the Part 119 MOS or issues an instrument under CASR 201.025).
Again for convenience, here’s the definition of ‘air transport operation’ with the important bit for present purposes underlined:
Definition of air transport operation
(1) An air transport operation is a passenger transport operation, a cargo transport operation or a medical transport operation, that:
(a) is conducted for hire or reward; or
(b) is prescribed by an instrument issued under regulation 201.025.
(2) Despite subclause (1), an air transport operation does not include an aerial work operation or a balloon transport operation.
I can therefore understand why CASA will want to continue to pretend that all ‘cost-sharing’ flights are for ‘hire or reward’, even if the PIC bears the entirety of the direct costs of the flight, and that a flight for which the pilot bears the entirety of the fixed costs is not a ‘cost-sharing’ flight.
I will draft some supplementary questions to ascertain whether CASA has thought through the implications of that. But don’t break your brains yet, because there’s more silliness to come.
My question 6 and its scenario were:
I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6, including the pilot seat. I have 3 passengers. I am not remunerated for the flight. The flight is not advertised to the general public. I pay an amount of the “direct costs” of the flight that is at least equal to the amount that would be paid by each person if the direct costs were evenly divided by all persons on board. The passengers give me $150 to reimburse part of my fuel costs. Just to be clear: $150 is much, much less than 3/4ths of the direct costs (including fuel costs) of the flight in this scenario. Question 6: Do you comprehend that the flight in that scenario meets the definition of one that is “cost-sharing”?
CASA’s answer:
Hooray! But not surprising. This is safe ground for CASA in the context of its opinion on the interpretation of the relevant provisions. A ‘bit’ of the direct costs have been borne by someone other than the PIC, the PIC has still paid an amount that is “at least equal to” the amount that would be paid by each person if the direct costs were evenly divided by all persons on board and CASA can characterise the ‘bit’ chipped in as ‘reward’.
But then the silliness begins. I’ll paste the final questions and answers with some added underlining, but the short point is that CASA reckons that if the amount ‘chipped in’ to meet a ‘bit’ of the direct costs of the flight is chipped in by someone
other than the POB, that is remuneration of the PIC. That's a lot of words found by CASA somewhere between the lines of the definition of 'cost-sharing' flight.
Question 7: I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6, including the pilot seat. I have 3 passengers. I am not remunerated for the flight. The flight is not advertised to the general public. I pay an amount of the “direct costs” of the flight that is at least equal to the amount that would be paid by each person if the direct costs were evenly divided by all persons on board. Angel Flight gives the passengers $150 to give to me to reimburse part of my fuel costs for the flight. Just to be clear: $150 is much, much less than 3/4ths of the direct costs (including fuel costs) of the flight in this scenario. Question 7: Do you comprehend that the flight in that scenario meets the definition of one that is “cost-sharing”?
Answer 7: No, as CASA would regard the payment from Angel Flight through the passengers to be remuneration to the pilot for the flight. This is because the payment from the passenger is effectively being made through or by a third party. CASA considers that payment arrangements for a cost-sharing flight be only as between the participants of the flight.
Question 8: I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6, including the pilot seat. I have 3 passengers. I am not remunerated for the flight. The flight is not advertised to the general public. I pay an amount of the “direct costs” of the flight that is at least equal to the amount that would be paid by each person if the direct costs were evenly divided by all persons on board. Angel Flight gives me $150 to reimburse part of my fuel costs for the flight. Just to be clear: $150 is much, much less than 3/4ths of the direct costs (including fuel costs) of the flight in this scenario. Question 8: Do you comprehend that the flight in that scenario meets the definition of one that is “cost-sharing”?
Answer 8: No, as the payment to the pilot is received from a third party, that payment would be treated by CASA as remuneration of the pilot.
So, to summarise CASA’s view:
If I take a mate’s son and daughter for a flight and I meet the
entirety of the direct costs of the flight, that is
not in any circumstances a ‘cost-sharing’ flight.
If, instead, my mate’s son and daughter each give me 50 cents out of their piggy banks to pay a tiny fraction of the fuel costs after I refuel after the flight, and I meet the rest of the direct costs, that
is a flight that can be a ‘cost-sharing’ flight. The $1 is ‘reward’.
If, instead, my mate gives me $1 at the fuel bowser, that is
not in any circumstances a ‘cost-sharing’ flight. The $1 is ‘remuneration’ of the PIC.
The different regulatory consequences of the different sources of that $1 are astonishing. The different safety consequences are not obvious to me.