CASA answered my question yesterday (Wednesday 18 October 2023). I have underlined what CASA highlighted:
Paragraph 11.110(2)(c) of the Civil Aviation Safety Regulations 1998 (CASR), which is highlighted below in the context of the regulation reproduced below in its entirety:
11.110 Authorisation document—other authorisations
(1) This regulation applies to an authorisation to which none of regulations 11.090 to 11.105 apply.
(2) The authorisation must set out:
(a) what the authorisation is; and
(b) any conditions applicable to it; and
(c) when it came into effect, and, if it will cease (either under a provision of these Regulations or on a day set by CASA) if not sooner cancelled—the day when it will cease; and
(d) any other information CASA thinks should be included.
None of the regulations mentioned in subregulation 11.110(1) applies to a CASR Part 141 certificate.
Part 11 is silent as to when an authorisation ceases. This means CASA can decide to issue an authorisation with no expiry date, or with an expiry date, subject to any provision in the regulations relating to the specific authorisation type in question.
Let’s assume CASA’s interpretation is correct, and that a tranche of regulations that are described as being about the format and content of authorisation documents, and are expressed as obligations about those matters for the evident purpose of ensuring consistency of format and content of pieces of squashed tree – either actual or electronic – also have buried deep in them a stand-alone power and discretion to decide the day on which the authorisation evidenced by the document ceases. If that’s correct, it’s just another example of a fundamentally important provision located in an entirely counter-intuitive part of the complex and convoluted dog’s breakfast that is the yet-to-be-completed regulatory ‘reform’ program.
You’d think that provision for the duration of Part 141 flight training certificates would be dealt with in either in Part 141 or in Subpart 11.BA, the latter of which, according to CASR 11.010(3A), “contains rules about granting authorisations, including the duration of, and the imposition of conditions on, authorisations.” But no: Let’s bury that in a tranche of provisions that deal with the format and content of documents.
This is a typical conflation of the decision horse with documentation of the decision cart. Various powers and discretions exist in regulations to grant an authorisation, to impose conditions on the authorisation and, in some cases, to limit the duration of the authorisation. If and when those powers and discretions have been validly exercised, obligations then arise as to the format and content of the document evidencing those decisions. The piece of squashed tree is just evidence of the authorisation. Look, for example, at CASRs 11.060 and 11.065, with my underlining added:
11.060 Notice of decision
(1) After making a decision on an application, CASA must give the applicant written notice of the decision, including:
(a) if the decision was to grant the authorisation applied for:
(i) if these Regulations provide for a certificate or other document to be issued to the applicant as evidence that he or she holds the authorisation—that document; and
…
11.065 When authorisation comes into effect
An authorisation comes into effect:
(a) on a day stated for that purpose in a document that is evidence of the holding of the authorisation, or in any relevant notice under subregulation 11.060(1); or
(b) if no day is so stated—on the date of the document or notice.
Then look at the all of the provisions in Subpart 11.C. They are all about the format and content of pieces of squashed tree (except, according to CASA, CASR 11.110 which includes a power to specify a day on which the authorisation evidenced by the squashed tree ceases).
Subpart 11.C—Authorisation documents, certificates and related matters
11.090 Authorisation document—authorisations to which Chicago Convention, Annex 1 applies
…
(2) The authorisation must comply with Chapter 5 of [Annex 1].
11.095 Authorisation document—maintenance operation authorisations
…
(2) The authorisation must comply with paragraph 8.7.1.2 of [Annex 6 of the Convention].
11.100 Registration certificate (Chicago Convention, Annex 7)
…
(2) The certificate must be in a form that complies with section 7.1 of Annex 7 [of the Convention]
11.105 Certificate of Airworthiness (Chicago Convention, Annex 8)
…
(2) The certificate must be in a form that complies with section 7 of Annex 8 [of the Convention].
…
11.115 Replacement documents
CASA may issue a replacement authorisation document in place of one …
[And in between 11.105 and 11.115 is the key provision which I’ve moved to last for clarity:]
11.110 Authorisation document—other authorisations
(1) This regulation applies to an authorisation to which none of regulations 11.090 to 11.105 apply.
(2) The authorisation must set out:
(a) what the authorisation is; and
(b) any conditions applicable to it; and
(c) when it came into effect, and, if it will cease (either under a provision of these Regulations or on a day set by CASA) if not sooner cancelled—the day when it will cease; and
(d) any other information CASA thinks should be included.
So there it is: A provision that imposes obligations as to what information must be included on a document evidencing an authorisation somehow includes a stand-alone power and discretion to set a day when the authorisation evidenced by the document ceases. I will bet folding money that the words in brackets in paragraph 11.110(2)(c) and the whole of paragraph 11.110(2)(d) were added to draft CASR 11.110 as a consequence of someone coming up with a last minute bright idea about how to make the regulations ‘better’.
My supplementary questions sent today (Thursday 19 October 2023):
1. Does CASA consider that a regulation, which imposes an obligation as to what words must appear on an authorisation document, includes a stand-alone power and discretion to decide any of the substance of the actual authorisation to be described by the document?
2. Does CASA consider that the obligation in CASR 11.110(2)(a), that an authorisation document must set out what the authorisation is, includes a stand-alone power and discretion to decide what the authorisation is?
3. Does CASA consider that the obligation in CASR 11.110(2)(b), that an authorisation document must set out any conditions applicable to the authorisation, includes a stand-alone power and discretion to decide what those conditions are?
4. Does CASA consider that the obligation in CASR 11.110(2)(d), that an authorisation document must set out any other information CASA thinks should be included, includes a stand-alone power and discretion to put words on the authorisation document that have any effect on what the authorisation itself is and does?
5. Given CASA's interpretation of CASR 11.110(2)(c), to whom has CASA delegated the power and discretion under that provision to set the day on which an authorisation subject to that decision will cease?
6. Does CASA consider the decision under CASR 11.110(2)(c), to set the day on which an authorisation will cease, to be reviewable by the AAT?
As background to question 7, I note that CASR 11.010 says in part:
"(3A) Subpart 11.BA contains rules about granting authorisations, including the duration of, and the imposition of conditions on, authorisations.
(4) Subpart 11.C provides for the form of authorisation documents and other matters related to such documents."
7. Given CASA's interpretation of CASR 11.110(2)(c), will CASA press for amendments to CASRs 11.010(3A) and 11.010(4) on the ground that they are misleading in their terms? On CASA's interpretation, subpart 11.C is not confined to the format and content of authorisation documents because - according to CASA - it extends to containing the power and discretion to decide the duration of the authorisation itself, in the case of authorisations to which CASR 11.110(2)(c) apply and whose duration is not determined by other regulations. Some readers might construe CASRs 11.010(3A) and 11.010(4) and the headings of Subpart 11.C and of the provisions within it, as meaning what they say: That they are just about the format and content of authorisation documents, not the substance of the authorisations themselves.
I’ll post CASA’s answers when I receive them.