From the Willowbank Coronial:
The application of the existing regime to tandem parachuting
Self evidently, the requirement for an aviation operation to have an AOC has crucial safety ramifications. It is determined by whether the activities engaged in by the air operator come within any of the “commercial purposes” set out in CAR206 which delineates the prescribed purposes referred to in s27 of the CAA. That regulation specifies three general categories of aviation activity that it lists and defines by description and example. The three broad categories are aerial work, charter purposes and regular public transport.
In so far as is relevant to this case, “charter purposes” include “the carriage of passengers or cargo for hire or reward to or from any place”. The ATSB report notes in 1999 the CASA board considered the ambit of CAR206 and apparently determined that “the aircraft operation aspect of commercial parachuting should be excluded from the AOC requirement in CAR206”. However no change was made to the legislation or to the CAR as a result of this determination. Rather it seems that this was a policy or an administrative understanding that has henceforth applied.
[CP comment: So, the regulator chose to ignore the law from then on.]
As the evidence in this inquest clearly establishes, CASA does not view the conduct of flights for the purpose of transporting parachutists as constituting a prescribed purpose under s27, and therefore does not require such operations to be conducted by the holder of an AOC. In the evidence of its officers to the inquest and its submissions, CASA contends that all of the people in the incident aircraft were “participants” in a recreational aviation activity.
Counsel assisting helpfully sets out in his submissions some relevant authorities. The South Australian Supreme Court in Chegwidden v White interpreted legislation which preceded the CAA but contained the same definition of charter operations as quoted above. The court held that an aircraft operator who provides a customer with a number of different services in return for a single overall charge, carries those passengers “for hire or reward” if one of those services is carriage as a passenger in an aircraft. The court emphasised it is the substance of the arrangement, not the form of it that is decisive: “the way the parties choose to dress up the arrangement, even with the best of motives, cannot be conclusive”.
Cox J observed; “If there is any ambiguity about it, the court should bear in mind that the evident purpose of the regulation in this respect is to promote air safety – higher qualifications are needed for a commercial pilot licence (as are now for an AOC) – and should give the regulations a liberal and remedial construction.”
The evidence in this case shows that customers of the Brisbane Skydiving Centre were charged a single fee for a tandem parachute jump. The fee included temporary membership of the APF, the provision of parachuting equipment, a pre-flight briefing from a parachuting instructor, the services of a tandem master and carriage in an aircraft to reach the jump height.
I have no doubt that part of the fee paid by tandem jumpers is for the air carriage to the jump height - this is why they are charged more if they jump from higher. Accordingly I am of the view a court could conclude tandem jumpers are passengers carried for reward and CASA has misinterpreted the legislation when determining such activities can be carried on without an AOC.
While the reasons for CASA’s policy approach cannot override the law, they are relevant to the consideration of which should be changed: the policy or the law. I will therefore examine CASA’s explanation of its policy position.
A CASA officer, Robert Glen, gave evidence that he is responsible for oversighting self administered aviation recreational activities such as hang-gliding, parachuting and ultra light aircraft. He said “it remains the policy of CASA to classify parachute operations as private and regulate them in accordance with CASA’s policy regarding industry sector priorities and classification of civil aviation activities”. Under that policy CASA distinguishes and prioritises the deployment of its resources in descending order with regard to the protection of “passengers, task specialists, and thirdly participants” respectively. According to Mr Glen “parachutists fall within the category of participants as occupants of aircraft who voluntarily engage in an aviation activity, who are informed of the risks and have explicitly accepted the risks of their involvement in that activity”. He suggested this was appropriate because they are “members of an organisation” which has the capacity to inform its members of the risks of their sport and to manage those risks.
CASA provides limited funding to organisations involved in self administered recreation activities, in this case the APF, to discharge a number of responsibilities in relation to the oversighting of the activities concerned. However, Mr Glen indicated CASA “never understood these obligations to extend to the examination by the APF of the manner in which an aircraft engaged in a parachute operation has been maintained or operated”. As indicated below, Mr Glen’s appreciation of the limited nature of the APF’s oversight of operators is accurate.
I am of the view this policy is seriously flawed. It is based on a false assumption that the passengers in the incident aircraft were in a position to inform themselves of the risk in participating in the activities advertised and offered by the Brisbane Skydiving Centre. The people who responded to the advertisements offering tandem parachute jumps were not in any position to assess whether the Brisbane Skydiving Centre operated in accordance with safety requirements that would apply to a commercial organisation or something significantly less; they had no interest in or regard to whether part of the fee they paid was used to sign them up as temporary members of the APF, and in any event, the APF did not exercise any oversight role in relation to the aviation aspects of the business.
I have no doubt members of the public would assume that a business advertising tandem sky diving freely available to the public without any significant training or testing was subject to the same regulations as a business offering, say, joy flights.
While members of the public wishing to engage in tandem parachuting can be expected to make their own assessment of the risk of jumping out of a plane while harnessed to a tandem master, they cannot in my view be expected to assess the suitability of the plane, the modifications that may have been made to it, the competency of the pilot or any other aviation issue to any greater extent than can a passenger chartering a light plane to fly him or her to a destination. I can see no valid basis on which CASA can suggest that a distinction between “passengers” and “participants” in these circumstances provides a reasonable basis for absolving itself from any responsibility for oversighting such operations.
[CP comment: in other words, the coroner’s view is that the law should be enforced, not changed in accordance with a patently flawed ‘policy’ decision of the regulator made in 1999.]
Further, as CASA does not consider that the APF has any role in examining the manner in which the aircraft engaged in parachuting was maintained or operated, nor of ensuring that those who take up publicly advertised services are informed of the risks, I am unable to comprehend the basis on which it concludes it need play no role in oversighting these aspects of publicly advertised and offered tandem parachuting, involving as it does carriage for reward.
In its submissions, CASA explains the need to apply a descending order of priority to its oversight of “passengers”, “task specialists” and “participants” as a result of it having limited resources and the Government’s requirement that it focus primarily on passenger safety. This is understandable. It is however inconsistent with its submission to the effect that the classification of the parachuting as a “private operation” and the fare paying passengers as “participants” does not expose those passengers to greater risk.
…
Conclusions
A court could conclude the occupants of the incident aircraft, other than the pilot and the tandem masters, were passengers who were to be carried for reward from the airstrip to the jump site. Accordingly, I consider CASA misapplied the provisions of the CAA s27 and CAR206 when it concluded that the Brisbane Skydiving Centre and other similar operators could offer tandem jumps to members of the public without holding an AOC.
[Bolding added, other than to headings]