As I said in one of my recent posts, I should have learnt the lesson, long ago, that CASA will never cease to amaze with the many and varied ways in which it can twist the regulatory regime. Here’s another example from CVDPA’s recent interactions.
(Unfortunately, these posts have to be quite lengthy, because we’re up against ‘Brandolini’s Law’ (or, more crudely, the ‘Bullsh*t Asymmetry’): The amount of energy needed to refute bullsh*t is an order of magnitude bigger than that needed to produce it.)
As background, I need to remind everyone, again, of the simple CVD provisions of the class 1 medical standard in Part 67 of CASR (effectively repeated in the class 2 standard):
Colour perception
1.39 Can readily distinguish the colours that need to be distinguished for the safe exercise of privileges, or performance of duties, under the relevant licence
Note: For how to demonstrate this, see subregulation 67.150(6).
…
[67.150](6) A person must demonstrate that he or she meets the criterion in item 1.39 of table 67.150 by:
(a) in daylight, or artificial light of similar luminosity, readily identifying a series of pseudo‑isochromatic plates of the Ishihara 24‑plate type, making no more than 2 errors; or
(b) for somebody who makes more than 2 errors in a test mentioned in paragraph (a), readily identifying aviation coloured lights displayed by means of a Farnsworth colour‑perception lantern, making:
(i) no errors on 1 run of 9 pairs of lights; or
(ii) no more than 2 errors on a sequence of 2 runs of 9 pairs of lights; or
(c) for somebody who does not satisfy paragraph (a) or (b), correctly identifying all relevant coloured lights in a test, determined by CASA, that simulates an operational situation.
Those provisions, and the rest of Part 67, were added to CASR in 2003. By my maths, that’s over 20 years ago.
The next key point to note well is that, in those couple of decades, not a single syllable of what I’ve quoted above has changed. Not a single syllable of the colour perception criterion at item 1.39 of table 67.150 has changed. Not a single syllable of CASR 67.150(6) has changed. Ditto the equivalent provisions for Class 2. (If you want to confirm my assertions are correct by reference to primary materials, here is a link to the Civil Aviation Amendment Regulations 2003 (No. 6) Statutory Rules 2003 No. 232. If you want to go ‘all out’ you can have a look at Statutory Rules 2004 No. 345 and 2013 No. 5, which made minor changes in CASRs 67.150 and 67.155, but not to the provisions I’ve quoted.)
Why am I telling you this?
CASA keeps quoting a provision – CASR 67.150(7) - as being relevant to its current ‘approach’ to CVD issues. That CASR says:
If a change is made to a criterion in an item of table 67.150, a person who held a class 1 medical certificate and satisfied the criterion immediately before the change, but fails to satisfy the criterion as changed, is taken to satisfy the criterion for 2 years after the day when the change is made.
CVDPA asked CASA how that provision could apply to a criterion – like the colour perception criterion at item 1.39 of table 67.150 - that hasn’t changed.
Here is what Ms Spence said, in writing, in response (and - Safety Warning! - make sure you’re seated and your seatbelt is fastened before you read this:
While the criterion which are defined in the table have not changed, the criterion for colour perception is the only one which the regulations specifically call out a method for how it will be established. Our view is that the intent of 67.150(7) could apply to the method.
But for the awful implications of CASA treating CASR 67.150(7) as if it has any current application to CVD, I would have fallen on the floor laughing at that explanation.
See if you can follow and understand this logic and, if you can, please post a description of why it makes sense to you:
1. Fact: Not a single syllable of the colour perception criterion in the class 1 medical standard in CASR - item 1.39 of table 67.150 - has ever changed.
2. Fact: Not a single syllable of the CASR prescribing the means of demonstration with that criterion - 67.150(6) - has ever changed.
3. Conclusion according to CASA: CASR 67.150(7), which is expressed to apply only if “a change is made to a criterion in an item of table 67.150”, applies to an unchanged regulation prescribing the way in which compliance with the unchanged colour perception criterion in table 67.150 must be demonstrated.
And to anticipate the questions, 67.150(7) is not about changes in an individual’s physical and mental fitness. Those changes can - of course - result in non-compliance the (unchanged) criteria in the medical standard. That’s the justification for periodic DAME examinations. But a change in an individual’s physical and mental fitness isn’t a change to the criterion in the medical standard.
Further, I know colour vision can change over time. However, the causes of those changes will be picked up by other ordinary tests. (Dr Pape can explain all that to anyone who’s interested.) Again, that's not a change in the criterion in the medical standard.
Further still, 67.150(7) has nothing to do with changes in third tier tests. Either a test has been validly determined, or it hasn’t. It’s binary. And the regulatory consequences – under CASR 67.150(6) - of passing or failing a validly determined third tier have never changed. That’s binary, too. Remember: not a single syllable of 67.150(6) has ever changed.
I’ll use an example to demonstrate the kinds of circumstances to which CASR 67.150(7) does apply in its plain terms. This example also demonstrates that Ms Spence was not quite correct when she said (my italics): “the criterion for colour perception is the only one which the regulations specifically call out a method for how it will be established”.
Hearing requirements
1.29 Is not suffering from any safety‑relevant hearing defect
1.30 If suffering from a hearing loss (measured in a quiet room using a properly calibrated, compensated audiometer) in either ear of more than:
(a) 35 dB at any of the frequencies of 500 Hz, 1 000 Hz or 2 000 Hz; or
(b) 50 dB at 3 000 Hz—
passes a speech discrimination test, or an operational check, carried out by an approved person in an aircraft of similar ambient noise level to that in which the person being tested is or will be operationally involved.
Item 1.30 looks to me very much like it has a ‘built in’ means of demonstration of compliance, through an operational test. Table 67.150 is in the regulations. Table 67.150 is the class 1 standard! But that issue aside…
Let’s assume item 1.30 was changed such that it prescribed maximum hearing loss limits that are more restrictive than are currently stated, without any operational test being available. That would be a change within the plain words of CASR 67.150(7).
After that change, a person who satisfied the ‘old’ hearing criterion but doesn’t meet the new, more restrictive criterion, is nonetheless deemed by 67.150(7) to satisfy the new criterion for 2 years from the change. That gives the person reasonable time to work out what to do to meet the changed criterion – perhaps hearing aids could be used to attain compliance - or to find a different job. And that outcome seems to me to make reasonable, practical sense.
Why would the zealots want to rely on CASR 67.150(7) as being currently applicable to colour perception? There can only be one reason, so far as I can see: They want to ‘cull’ pilots with CVD who’ve previously demonstrated compliance with the colour perception criterion through means with which the zealots personally disagree. The zealots want to write to those pilots – citing 67.150(7) - and say you’ve got 2 years to comply with the “changed” colour perception standard – in truth, the zealots’ personal opinion of what the standard should be - and, if the candidate can’t, too bad for the candidate. Off to the Federal Court for you, if you can stand the stress and cost.
The situation has deteriorated to the bizarre point at which CASA is preventing candidates from complying with the law. Candidates who fail Ishihara and Farnsworth cannot comply with CASR 67.150(6)(c) because CASA says there is currently no third tier test! You couldn’t make it up. The Civil Aviation Safety Regulator is preventing people from complying with the Civil Aviation Safety Regulations, because CASA doesn’t want to do its one job and determine one or more ‘third tier’ tests.
As far as the zealots are concerned, it doesn’t matter whether or not a candidate passes a third tier test. CASA currently says, in black and white in letters to candidates, that the candidate fails to satisfy the colour perception criterion before the person has even attempted a validly determined third tier test! That renders any further test – third tier or otherwise - an expensive, inconvenient waste of time for the candidate, because CASA’s already decided that the candidate does not satisfy the criterion. Again, hence one of CVDPA’s current recommendations. Don’t do any test other than Ishihara and Farnsworth unless CASA says, in writing, that the other test has been determined as a third tier test and, if you pass it, you will get a ‘clean’ certificate so far as colour vision is concerned.
CASA’s citing of CASR 67.150(7) as somehow being relevant to the unchanged regulation prescribing the way in which compliance with the unchanged colour perception criterion in table 67.150 is to be demonstrated, is another example of what I consider to be a perversion of the simple and plain words of CASR. And CASA deciding that a candidate fails to comply with the colour perception criterion before the candidate has even attempted a validly-determined third tier test seems to me to be a matter of pre-judgment and refusal to give effect to the plain words of CASR 67.150(6).
Request: If you have received correspondence from CASA about colour vision deficiency and the correspondence cites CASR 67.150(7) (or CASR 67.155(7) for Class 2) as having some consequence for you, please let CVDPA know. The contact page is here.