36. The only remaining issue with CAR 206(1)(b) is whether the circumstances in which Caper carries passengers and or cargo to Bathurst Island fall within the description: in which accommodation in the aircraft is not available for use by persons generally. This expression is to be distinguished from that used in CAR 206(1)(c) which is: the purpose of transporting persons generally, or transporting cargo for persons generally. These two adverbial clauses have been the cause of numerous disputes regarding the distinction which should be drawn between RPT and charter operations. Both clauses are governed by the word generally, an adverb. The word generally is defined as:
1. usually. 2. without considering details; broadly. 3. as a whole; collectively. (Chambers 21st Century Dictionary)
3. In a general sense or way; as opp. to specially. (The Shorter Oxford English Dictionary)
An adverb is a word which describes or adds to the meaning of a verb, adjective or another adverb. It does not qualify or add meaning to a noun, such as the word person or persons. As the authors of the text The World Book of Word Power (1991) Volume 1 state:
37. Having explained some elementary rules of grammatical construction, it should be apparent that the first clause (CAR 206(1)(b)(ii)) means that a closed charter is one in which accommodation on the aircraft must not be available to those people who are only using the aircraft to travel from destination A to destination B. Such persons do not have a common purpose for travel to destination B. Their reasons for using the aircraft are simply to arrive at a common destination and then to undertake any variety of individual activities depending upon what each passenger had in mind was the purpose of his or her travel.
38. To fall within the closed charter provision under CAR 206(1)(b)(ii), those persons who travel to a destination terminal must all have the same special purpose for travelling to that destination. In my opinion, that is what distinguishes a closed charter from RPT. For example, mining companies and off-shore oil companies in the north west of Western Australia operate charter flights to and from Perth for their employees on a regular basis. All of the persons on board those charter aircraft are being transported to their destination terminal so that they can conduct their work for the company which has chartered the aircraft or an associated entity. Their purpose is common even though their occupations may vary. The company may also allow non-employees to utilise the transport, so long as the use bears some relationship to the work being undertaken by the company. Other than the common purpose for undertaking a flight, those persons who travel by closed charter may have no other relationship with their fellow travellers.
39. Unfortunately, I have not come across any material which would indicate that the two clauses I have referred to above in CAR 206 have undergone any proper analysis having regard to their grammatical construction. It therefore comes as no surprise to me that the interpretation of those clauses by CASA, and by Tribunals and Courts, may not be in accordance with the opinions I have expressed above. It seems to me that this has led to distinctions being drawn between certain operations which, not only make no sense, but also have nothing whatsoever to do with aviation safety.
40. CASA has published what is described as Regulatory Policy regarding the classification and regulation of closed charter operations under CAR 206(1)(b)(ii). That policy document is signed by Mr John F McCormick, who is the Director of Aviation Safety. It was issued in July 2009 and reviewed in July 2010. It is properly described as Departmental Policy as distinct from Ministerial Policy. In its reasons for making the policy, CASA has indicated that the current distinction between charter and RPT will soon disappear and be replaced by one category, Passenger Transport. However, this has not yet occurred. The policy document purports to provide clear guidance on the classification of operations as closed charter or RPT and the limitations and condition which may necessarily be imposed on certain kinds of closed charter operations.
41. Quite correctly, CASA has identified that of all the elements which are required to support closed charter operation, the adverbial clause which I have analysed above has proven to be most problematic. CASA has also identified the problem of what it describes as the interposed entity. CASA describes the interposed entity as an entity placed between a charter operator and the passengers who travel on the aircraft. The interposed entity is said to sell individual portions of its accommodation on the aircraft to passengers. The policy document explains that the interposed entity may be unconnected with a charter operator and therefore the individual passengers who travel on such charters only have a contractual arrangement with the interposed entity, and not the charter operator. The policy document then states:
42. The policy document provides an example of charters which may genuinely be classified as charters, that is, although the passengers who fly are not necessarily the persons who have chartered the aircraft, the passengers will normally have a prior relationship involving elements other than the air travel. CASA cites the example of a church which organises regular trips for its congregants to a particular location for the purpose of attending religious retreats, where the attendance at the retreats is limited to church members exclusively. CASA considers those types of charters to fall with CAR 206(1)(b)(ii). CASA then expresses its concern about interposed entities in the following way:
Indeed, it is not unusual to find purportedly ‘closed’ groups that have been created solely for the purpose of providing a conduit through which members of the public (i.e., persons generally) might be funnelled onto an aircraft.
This statement clearly highlights the fact that CASA has mistakenly understood the adverb generally to qualify the noun persons. With the greatest respect, it cannot and it does not do that. It is simply a grammatical error to read the adverbial clause in that way. It is not surprising therefore that this has led to some remarkable contortions in reasoning when attempting to distinguish a genuine charter from RPT. CASA’s policy document provides the following example:
Even in otherwise straight-forward situations, problematic questions relating to the characterisation of the passenger group can arise. It is conceivable that a legitimately ‘closed’ group may consist of a large number of members. Conversely, a very small passenger group may well have a general and unrestricted membership. Demonstrably discrete, special and enduring characteristics shared by members of a group (e.g. hair colour) may have no real bearing on the propriety of characterising such a group as ‘closed’ for the purposes of classifying an aerial service operation. Characterisations based on arguably legitimate, social or economic purposes – for example, ensuring that members of remote communities are able to obtain the services of tradesmen on a regular and predictable basis; or facilitating visits of family and friends to miners located at a great distance from their homes for extended periods of time – may involve conflicting values. For example, while it surely a “good thing” to facilitate air travel to and from remote Aboriginal communities, it may not be such a good thing to allow what amounts to RPT services for members of those communities to be conducted at a reduced level of safety
43. What appears from CASA’s analysis of CAR 206(1)(b)(ii) is that unless the persons purportedly chartering an aircraft have some identifiable and close relationship, although that relationship may or may not be relevant for the purposes of characterising the charter, if the flight is conducted in accordance with fixed schedules and between fixed terminals, it is an RPT operation. That, in an unexplained way, is said to reduce the level of safety. Quite plainly, this makes no sense. Whether the passengers who fly on these aircraft have some pre-existing relationship makes no difference to the safety of that operation. If CASA’s concern is with the numbers of passengers carried or the frequency of flights, it can impose conditions on an AOC under s 28BB of the Act.
Folks,
The above is an extract from AAT Senior Member Fice's judgement.
It really is a good idea to read read the whole judgement, he goes into the history of this area of regulation back to 1947, to show it is all about limiting commercial competition, and nothing to do with satisfactory standards of operation of the aircraft --- and not just an argument about interpretations of grammatical construction.
Tootle pip!!
PS: In the US, things like aerial photography, cloud seeding etc., generally where no passengers are carried for hire and reward, aircraft operate just under Part 91, General Operating and Flight Rules.
Large slabs of our "safety" regulation had their origins in regulating commercial operations, a legacy of DCA days, and nothing to do with "safety", but once they are on the books, it is very difficult to get rid of them, no bureaucracy ever gave up power without a fight.