CASA's response to my supplementary questions:
Subsequent question 1: I therefore request that you confirm that CASA’s position continues to be that CASR 11.140 has no operation in relation to medical certificates.
Subsequent response 1: Yes, CASA's position is that CASR 11.140 does not apply to a medical certificate. The entire legislative scheme needs to be considered in that respect, highlighting the operation of (a) CASR 11.140(1), and (b) CASR 67.210-67.225 that provide for extensions of the period that a medical certificate is in force. There are no other provisions in CASR that provide for the extension of a civil aviation authorisation issued by CASA, and that together with the terms of the extension provisions support CASA’s view CASR 11.140 does not apply to medical certificates.
Subsequent question 2: Further, are you able to nominate a certificate, other than a medical certificate, which falls within the scope of paragraph (c) of the definition of “authorisation” and definition of “time-limited authorisation” in CASR 11.015, and to which in CASA’s view CASR 11.140 does apply?
Subsequent response 2: Yes, an example of such a certificate is a flight training certificate issued under Part 141 of CASR.
My follow-up:
I note that you now cite CASRs 67.210-67.225, which provide for extensions of the period that a medical certificate is in force, as if they have relevance to the interpretation of the scope of CASR 11.140. Your original reasoning was based merely on the words “privileges … functions or duties…” in CASR 11.140(a) and your view that medical certificates confer no privileges and authorise no functions or duties.
I also note that you have made no reference to what the Explanatory Statement for the regulations, which inserted Part 11 in to CASR, says about Part 11E. Your statement that “[t]he entire legislative scheme needs to be considered” is correct, so far as it goes. But so should the wider context be considered (at least since the High Court’s decision in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) CLR 384). The wider context, including the Explanatory Statement, makes abundantly clear what mischief Part 11E is intended to remedy. The mischief is the damage caused by CASA delays over which applicants for new time-limited authorisations to replace old time-limited authorisations have no control. And we agree that medical certificates fall within the Part 11 definition of “time-limited authorisation”.
As to consideration of “the entire legislative scheme” and CASRs 67.210-67.225, you omitted to consider the opening words of CASR 11.140(3) (bolded by me):
(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.
CASRs 67.210-67.225 are among the other provisions in spite of which CASR 11.140(3) operates. That is the very point of Subpart 11.E. Despite whatever all of the other regulations – including CASRs 67.210-67.225 – say about the duration of a time-limited authorisation, CASR 11.140(3) overrides all of that and keeps the authorisation in force if the holder has applied sufficiently in advance of when it would otherwise expire and the application is for a new authorisation that is – to use the words of the Explanatory Material – “in the same terms” or “substantively the same” as the old authorisation. It all makes robust common sense in the real world, especially in the case of medical certificates.
You do not need to respond to the above unless it changes your view. At this point it is clear to me that nothing I say will deter CASA from what appears to me to be a forgone conclusion, the subject now of unconvincing ex post facto attempted justifications.
However, I do seek clarification of your answer that a flight training certificate issued under Part 141 of CASR is an example of a time-limited authorisation which CASA considers can be within the scope of CASR 11.140(1). My clarification question is:
What provision of CASR results in flight training certificates issued under Part 141 ceasing after a particular period, or gives CASA power to issue flight training certificates issued under Part 141 with limited duration?
I have searched Part 141 for any provision to that effect, to no avail. I also note that even though CASR 11.010(3A) says that Subpart 11.BA “contains rules about granting authorisations, including the duration of, and the imposition of conditions on, authorisations”, no provision of Subpart 11.BA that I can find deals with the duration of authorisations. There is, for example, a provision dealing with when an authorisation comes into effect – CASR 11.065 – but I cannot find a provision of Subpart 11.BA dealing with when an authorisation expires or ceases to be in effect or operates for only a specified duration. (I do hope CASA would not seek to rely on the mere ‘note’ under CASR 11.065 as the source of any power to impose time limits on authorisations.) My apologies if I’ve overlooked the operative provision.