Warbirdsin combat over planned rule changes
Irate Australian Warbirds Association Ltdmembers fear AWAL could be shut down until it gets its affairs in order, anevent that could mean a mass grounding of their fleet until the issue ofregulatory oversight is resolved. They are now saying their organisation is “ina right royal mess,” following a bitter annual general meeting on November 24 thatended in an adjournment without resolution of serious issues. The organisationrepresents some 300-400 members, and about 250 aircraft.
Members believe that unless the mess issorted out, downstream damage could also include the grounding of numerous experimentalcategory aircraft, which their organisation is seeking CASA delegation tomanage in an extension of its self-administration mandate.
The row developed when some board memberssought to displace sitting Chairman Kim Rolphe-Smith, install their ownnominees to replace departed board members, and purported to appoint a newchairman without a membership vote in compliance withthe Corporations Act 2001 which details the rules for the administrationof public companies.
The purported board meeting took placeduring the adjournment of the AGM and was arguably not a permitted act duringan adjournment of the AGM, when the powers of the board are limited.
AWAL was incorporated in 1989 as a non-profitpublic company limited by guarantee, to represent aircraft owners, operators,restorers, maintainers, historians and enthusiasts, and to help promote andpreserve Australia's military aviation heritage.
With the later establishment of certificationsfor “limited category aircraft,” AWAL was then proposed and approved as theindustry body to undertake self administration of the category under a CASAdelegation. The organisation currently has one paid executive, CEO SteveCrocker, who along with Secretary/Treasurer Jeff Muller, reports to an electedseven-member board, with Queensland warbird operator Kim Rolph-Smith as itscurrent President.
The organisation's first problems appearedwhen a BAC 167 Strikemaster crashed in 2006 during a warbird adventure flight,and (then) CASA director Bruce Byron almost grounded the Australian warbirdfleet. Two senior AWAL members approached CASA to acknowledge the issues,present a detailed submission on the way forward, and negotiate an agreedcourse of action to allow the fleet to keep flying. They reached an agreementthat AWAL would fund and provide the self-administration of limited categorywarbirds on behalf of CASA under the Civil Aviation Regulation (CAR) 262AN,which had been put in place for that purpose back in 1998.
The arrangement has since survived despite CASA’slack of progress in developing the regulatory framework, and the hostility ofelements within the regulator who don’t believe warbirds should fly, and are averseto the concept of experimental category aircraft into which some warbirds fall.
The experimental category was new in 1998,but since many had been pushing for it for a long time, its adoption was arelief for owners of homebuilt, historic and ex-military aircraft. Howeverlimited category (an Australian innovation) further provided the opportunityfor suitably certified aircraft to carry paying passengers on special warbirdadventures, which in turn provides revenue to hold the fleet to acceptablesafety and airworthiness standards for fare paying passengers.
The appointment of officials acceptable toCASA to administer limited category aircraft was central to the agreement, andAWAL was set up with an airworthiness specialist in charge of safetyindependent of the Board, and a chief executive officer as general manager,reporting to the Board and CASA as appropriate. Stephen Dines, a well-known CAR21 delegate and experimental/limited category expert, was appointed in theairworthiness role but was replaced when the present CEO Steve Crocker wasappointed. Subsequently, the controlling manual was also rewritten to give theCEO safety management control despite his non-airworthiness background.
What worriedmembers at the November AGM was that the CEO could now make safetydeterminations for which he was not qualified, and that he had also beenofficially contracted by CASA to help prepare Part 132 in draft legislation,which was set to become the regulatory suite for warbirds, when corporate jetsand some other operations were moved to another CASR Part. It is understoodthat certifications issued to AWAL are now under review, that no newcertifications are being issued, and that a number of projects are on hold pendingresolution.
"What we’re worried about now,"says one concerned AWAL member, "is that the Warbirds Association CEO haspowers that he is not qualified to exercise, because CASA either modified theprocedures manual or approved its modification, bypassing the qualificationrequirement. This was certainly done with CASA approval, although I’d speculatewithout CASA’s understanding of its ramifications. The new Part 132 isextremely onerous and imposes a massive burden compared with what we've had forthe last 14 years. This obviously suits CASA, but we should not have asituation where an organisation like Warbirds is having these onerousrequirements thrust upon them by their own CEO who is working together withCASA to write them.
“Oneexample among many is that the operating limitations have become more severe sothat in some aircraft it will be impossible to avoid flying over a built-up area,because if you’re at a cruise level of 15,000 feet and above cloud, you can'tbe sure that you’ll avoid flying over townships. That will no longer betolerated, and it will become an offence with severe penalties.
“Next,each limited category aircraft would be required to have an operating manualunder the new rules, which will have to be individually approved by AWAL onbehalf of CASA. There will be a pilot operating handbook to tell you how to flythe aeroplane, but there'll be another manual that tells you what you'reallowed to do with it, where you can go in it. At the moment the law says alimited category aircraft is limited by any conditions imposed by itscertificate of airworthiness. So those conditions exist for the whole category,and now they've been expanded by this part 132 into a requirement for approvedmanuals, which set out in great detail what you can and cannot do; and therewill be a huge cost to that."
Evenmore concerning, is an apparent move to require experimental category owners toupgrade their aircraft to limited category. This will be impossible for manyexisting aircraft, particularly those currently approved to perform at airshowsand exhibitions, many of which are heavily modified and incapable of qualifyingfor limited category. The move has been put forward to CASA as a way ofimproving AWAL’s revenue by requiring experimental category warbird aircraft tocome under its administration, as was admitted by a CASA person at the recentAGM.
Thepresent regulatory arrangements for experimental reflect exactly the governmentintentions for experimental exhibition aircraft. Although the proposed changesfly in the face of that Government policy, they appear to be ‘CASA policy’, anot uncommon concept among officials when they argue “the government has got itwrong.” It runs contrary to the legal position that CASA cannot propose rulesfor commercial advantage; it can only propose rules to Parliament for purposesof air safety. Changing rules to facilitate the commercial activities of AWALhas nothing to do with air safety, and some argue it does the opposite, transferringaircraft from direct CASA air safety surveillance, to a self-administrativebody.
“IfCASA wanted to allow the Warbirds Association to administer experimentalaircraft, they could just decree that it does so,” says one AWAL member. “Butwhat they're doing instead, is to say ‘no, you can't have an experimentalcertificate at all; you'll have to swap over to a limited CofA so that AWAL canadminister you.’ It's all being done so that the CEO can get some more moneyinto the organisation. It’s a quite unnecessary thing to do, it’s not viable,and it can't work for a lot of aeroplanes because a lot of them can't bemodified to come up to that standard. For many experimental aeroplanes to bebrought up to a standard that is acceptable in the limited certificationcategory is just too onerous, and not feasible. You'd be looking at maybe $100,000on some aeroplanes, where the whole point of the experimental category is thatyou don't have to do that if you don't need to.
“Butthe CEO and CASA are working together to disadvantage the experimental fleetfor the purpose of propping up the income of the Warbirds Association. At themeeting last week the words of Jeff Muller, the secretary, were ‘we have to dothis, because of membership leakage and financial leakage over the past fewyears.’ Membership leakage means that if somebody wanted to avoidself-administration they can swap their limited certificate of airworthinessfor an experimental one and then they wouldn't have to be administered at all.And therefore in Jeff Muller's mind, the answer is for all aircraft to have alimited CofA. It's a physical impossibility and they haven't worked all thisout yet, they just ‘think it will all be all right.’
"Andthose owners will be forced into self administration whether they need it orwant it. This is all very well, it will allow the Warbirds Association to havemore members to make it an economical proposition to provide administrationservices etc. However there are different certification requirements forexperimental aircraft versus a limited category aircraft. So by forcing theexperimental aircraft to upgrade to limited, the costs of doing that for a lotof aircraft will be prohibitive, and they'll just be sold or scrapped orgrounded."
Theproposal also seems to ignore for the fact that numerous experimental categoryaircraft owners require no additional administration at all. They fly theiraircraft with a CASA pilot licence and under the same regulations, they arerequired to use and approved maintenance organisation that is overseen by CASA,and they need to carry the same minimum equipment on board as everybody elsedoes. The same goes for amateur-built aircraft, about 90% of which are also inthe experimental category.
Membersare also concerned over what they believe are irregularities in AWAL’sadministration. They say these include failure to present company annualaccounts, non-notification of board member retirements, and one incorrect claim(amongst several) in a post-AGM newsletter, that the annual financial statement(not presented at the AGM) is audited, when it was not.