Believe it or not, there are provisions of the rules that are designed to provide us with some protection from the capricious consequences of incompetent and overreaching bureaucracies. One of those provisions is CASR 11.140(3).
I’ll quote the entirety of CASR 11.140, later, so you have all the gory detail, but here’s 11.140(3) with some tweaks I’ve made to try to make its effect clearer:
In spite of any other provision of these Regulations … [a person’s] old authorisation continues in force until:
(a) CASA makes a decision on the application [by the person for a new authorisation]; and
(b) if the decision is to grant the new authorisation—the new authorisation comes into force.
It seems to me to be a very simple and reasonable concept. I hold an authorisation and apply for a new one because I need to continue to be authorised to do what I want to do. While ever that application – provided it is complete - is bumping around in the bowels of the bureaucracy, my old authorisation remains in force even if the date of expiry printed on it passes. After all, I have no control over the corporate competence and integrity of the bureaucracy.
You might ask: What is an “authorisation” for the purposes of CASR 11.140? Good question. Here’s the relevant current definition from CASR 11.015:
authorisation means:
(a) a civil aviation authorisation other than:
(i) an AOC; or
(ii) a delegation; or
(iii) the appointment of an authorised person; or
(iv) an authorisation issued by an ASAO; or
(b) an approval or qualification of a document or thing under these Regulations, other than a material, part, process or appliance to which regulation 21.305A applies; or
(c) a certificate capable of being granted to a person under these Regulations.
Note (c) in particular: “a certificate capable of being granted to a person under these Regulations”. Medical certificates are issued under CASR 67.180(2).
So it looks to me like a medical certificate is a “certificate capable of being issued to a person under these Regulations” (i.e. CASR 67.180(2)) and is therefore an “authorisation” for the purposes of Part 11. I’ve asked some questions of CASA that include its position on this question (see below).
There’s another important definition in Part 11:
time limited authorisation means:
(a) an authorisation that, under another provision of these Regulations, ceases after a particular period; or
(b) an authorisation granted by CASA for a specified period.
Medical certificates cease after a particular period or are granted for a specified period. So it seems to me that if a medical certificate falls within the scope of the definition of “authorisation” in Part 11, a medical certificate is also a “time limited authorisation” for the purposes of that Part.
With that background, here’s the current CASR 11.140:
11.140 Continuation of authorisation until application decided
(1) This regulation applies in relation to a time‑limited authorisation (the old authorisation) if:
(a) at least:
(i) in the case of an authorisation held by a corporation, 90 days; or
(ii) in any other case, 21 days;
before the time when the old authorisation would otherwise cease, its holder applies to CASA for the issue of a new time‑limited authorisation that confers the same privileges, or authorises the holder to carry out the same functions or duties, as the old authorisation; and
(b) at the time when the old authorisation would otherwise cease, CASA has not made a decision on the application.
(2) For subregulation (1), an applicant has applied for the new authorisation only if:
(a) the applicant has given to CASA the necessary application, in the form required by these Regulations; and
(b) the application is taken to be complete, in accordance with regulation 11.030; and
(c) the applicant has given to CASA any other documents required by these Regulations to be given to CASA with the application.
Note: The applicant does not need to give to CASA information or a document that CASA already has—see regulation 11.145.
(3) In spite of any other provision of these Regulations, but subject to subregulation (4), the old authorisation continues in force until:
(a) CASA makes a decision on the application; and
(b) if the decision is to grant the new authorisation—the new authorisation comes into force.
(4) If CASA asks for further information or a document or invites the applicant to make a submission, under a provision of Subpart 11.B as applied by regulation 11.145, and the applicant does not do so within the period specified by CASA under that provision, then, despite subregulation (3), the old authorisation is taken to cease at the end of that period.
So it seems to me that if I apply for a new medical certificate at least 21 days before my old one expires and I’ve given CASA everything required, my old certificate continues for however long it takes CASA to get its act together and make a decision.
I realise that there are formidable practical problems for the holders of medical certificates who fly internationally, because other countries’ authorities will be focussed on what is said on the piece of squashed tree you’re carrying. But the fundamental threshold question is whether, at least as a matter of domestic law, CASR 11.140 does what it appears to say it does to medical certificates. I have asked CASA the following questions:
1. Does CASA consider a medical certificate capable of being granted under CASR 67.180(2) to be an "authorisation" within the scope of the definition of that term, and in turn a "time-limited authorisation" within the scope of the definition of that term, in CASR 11.015?
2. If the answer to question 1 is yes, does CASA consider that if the holder of a medical certificate issued under CASR 67.180(2) applies for a new medical certificate at least 21 days before the old certificate is expressed to expire, and the circumstances of the application satisfy the criteria in CASR 11.140(2), the old certificate will, as a consequence of the operation of CASR 140(3) but subject to CASR 140(4), remain in force until CASA makes a decision on the application and, if the decision is to grant a new certificate, until the new certificate comes into force?
3. If the answer to question 2 is yes, does CASA agree that the effect of CASR 140(3) is to keep medical certificates (and the other authorisations to which CASR 140(3) applies) in force despite the date of expiry that happens to be expressed on the certificates?
4. Does CASA agree that the circumstances of an application for a new medical certificate can satisfy the criteria in CASR 11.140(2), whether or not any individual CASA delegate is aware of or has turned his or her mind to the substance of the application?
5. What does CASA consider to be the minimum period CASA may lawfully specify in an invitation, under a provision of Subpart 11.B as applied by CASR 11.145, for an applicant to make a submission or provide further information or a document pursuant to CASR 140(4)? For example, does CASA consider that CASA could lawfully specify a period of 24 hours, such that a medical certificate being kept in force by CASR 140(3) would cease to be in force 24 hours later if the applicant did not respond to the invitation within 24 hours?
I asked the last question because CASA Avmed are masters at pulling whatever tricks they can to get around inconvenient impediments to them imposing their will on us guinea pigs.
I’ll let everyone know what answers I receive when I receive them. I will also write to the CEO of CASA once I receive the answers, seeking confirmation that CASA “acknowledges” the answers. Given the content of recent correspondence from the CASA CEO to Glen Buckley, it appears that something said or done by someone in CASA other than the CEO didn’t happen unless and until the CEO “acknowledges” it happened.