Just in case my references to that cozy lunch are a cause of the move to administration, I quote the following from pages 296-299 at:
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Senator O'BRIEN --At the last hearings I asked you about the regulatory arrangements as they relate to pilot training for ultralight aircraft. You told me there were no differences in the types of pilot training provided on a commercial basis. On page 263 of the Hansard of 30 May, you said CASA was attempting to find a means by which people could “undertake commercial flying training as opposed to flying training for their members on a not-for-profit basis”. Mr Yates referred to a meeting with the Australian Sports Aviation Confederation on 10 April, and he said that at that meeting CASA officers put to the group a plan to facilitate the issuing of an AOC for sport aviation activity. He referred to a paper which was tabled at that meeting. I do not know if it was actually tabled before the committee. I think Mr Yates offered to table it, but I do not think we actually received it. Can the committee be supplied with a copy of that paper, please?
Mr Toller --Yes, we will try and trace it.
Senator O'BRIEN --Thank you. I understand you wrote to Paul Middleton, the executive director of the AUF, on 11 February this year and said:
“Thank you for hosting me for lunch today. It was good to get together and clarify some important issues. We must do it more often.
“As discussed I believe there is a sensible resolution to the issue of the proposed requirement for AOCs for all commercial flight training organisations including ultralights. Although the NPRM is open for comment until 28 February, it is now clear in my mind that a better path is to amend CAR206. I intend to propose to do this in the near future prescribing that sports aviation and ultralights do not require an AOC for flying training.
“Hence I believe your best response to the NPRM would be to write that you would support an amendment to CAR206 as discussed with the Director on 11 February 2002.
“I look forward with interest to see how the other issues we discussed progress.
Was it such a good lunch that you decided to take a U-turn on the previous position you put before this committee on the provision of commercial pilot training?
Mr Toller --No, I certainly would not claim that the lunch had anything to do with any U-turn, Senator. This has always been a difficult issue to resolve. The previous policy approach was that we did not--while we were trying to undertake the complete review of all the new regulations--want to undertake an amendment to CAR206.
CAR206 is the regulation which prescribes those activities which require an AOC. It has long been one of the more difficult regulations for us in many ways. The reason that we were looking for a means to provide certification for commercial flying training for sports aviation was because specifically it was prescribed within CAR206. It was clear to me that there would have been immense resistance from the sports aviation movement, and particularly I think from the ultralight movement, to the proposal that was put forward. Therefore it was worth considering whether there were other ways to achieve the same end and, let us be quite frank about this, the same safety end, because that is what we are talking about at the end of the day.
I therefore, after some discussions with the board, the secretary and the minister, proposed that we review the whole issue of which aerial work activities actually require an AOC. We brought in a consultant who had international knowledge in this subject and had worked with us previously. As a result of his report we are currently internally, within the authority, undertaking a review of all those aerial work activities. Equally, as a result of his report, he made it clear that he believed that the government policy--going back to 1985 or 1986--was that sports aviation should be allowed to be self-administering and that it should be allowed therefore to continue to do this and should not have an extra imposition put upon it. I was prepared to accept that view. In accepting that view it leads you down virtually the only other logical avenue, which is that you amend CAR206.
Senator O'BRIEN --Notwithstanding the view that you put on 30 May, does the acceptance of this other view amount to a direction, effectively?
Mr Toller --It retains the status quo that has existed since 1985 or 1986 without imposing the requirement for an air operator's certificate on sports aviation and all that would have entailed for those bodies. I do not believe it has any effect on anything other than the administrative burden.
Senator O'BRIEN --Is it usually your practice to form a view about a proposal to change a regulation or rule before the comment period for an NPRM has closed?
Mr Toller --No, most definitely not, Senator. You will recall that in this particular case, though, we have extended the comment period. I think it is safe to say that, even though some comments may still be coming in over the next nine days, or however long it is, the overwhelming view of all the comments--and a large number of comments have come in so far--was that the proposal as put in the NPRM was not acceptable to industry.
Senator O'BRIEN --To industry or to parts of industry?
Mr Toller --To those affected, I think, is probably the best way to put it.
Senator O'BRIEN --The providers in the sports and ultralight aviation field?
Mr Toller --Yes.
Senator O'BRIEN --That is the industry you are talking about?
Mr Toller --The majority of the responses would come from those people.
Senator O'BRIEN --Who else have you communicated this view to? You communicated it to Mr Middleton before the end of the NPRM comment period. Who else did you communicate it to?
Mr Toller --I have communicated it to two people, and there was one reason for both of them. The reason is to try and prevent them from having to write a 50-page response to the NPRM and achieve the same end, if you like. In other words, I knew that they were quite capable and probably had drafted very lengthy responses but I just believed that they should know the way that we were thinking. I have also explained this position to Mr Henk Meertens, the President of the Australian Sports Aviation Confederation, who is the other person who is affected. It was with Mr Meertens and the members of his committee that we in fact formulated the original plan for a lower form of certification, which was called an AOC for sports aviation.
I think it is probably fair to say that the politics of sports aviation is quite complex. For reasons that I do not think I even yet understand, the Ultralight Federation split from the Australian Sports Aviation Confederation in about September of last year, and in so doing created sort of a split of opinion within the sports aviation body from that which had existed when we first put together our proposal, so it was really a very different environment in which we were working and I think that what we have achieved is a sensible result for all those who are involved.
Senator O'BRIEN --So you have asked one industry participant to write and support a view that you have taken? That is what you have done, isn't it?
Mr Toller --I have done it to both of those two, whose organisations represent all the people who were responding to us as individuals.
Senator O'BRIEN --Do you commonly lobby for submissions to be made in response to a notice of proposed rule making to support a view you have about the rule making?
Mr Toller --Not at all. I just believe that, when it is clear from work that has been done since the NPRM was put out, and the weight of the responses to the NPRM suggest that it has no support at all from the respondents, if it is clear that we will be taking another line and that is agreed by the board, why would I not communicate that in advance?
Senator O'BRIEN --This is a board decision?
Mr Toller --It is a decision that has been made by me and ratified by the board. In other words, it is made by me as the chief executive with the advice of my team, and ratified by the board.
Senator O'BRIEN --Before the end of the NPRM, the board has determined the matter?
Mr Toller --Sorry, Senator?
Senator O'BRIEN --Before the end of the consultation on the NPRM, the board has determined the matter?
Mr Toller --The board has reviewed the whole situation by asking and agreeing to a review of the requirement for aerial work AOCs. The change that has been made effectively is an agreement that, rather than not amend CAR206, which was the previous board position, the board now accepts that there are occasions--and this is one--when amending the current regulations is probably the best way to go.
Senator O'BRIEN --So it has been determined by CASA that you will propose to the minister an amendment to CAR206 which will exempt all sports aviation training, whether it be commercial training or training for members of an AUF from a requirement to hold an AOC.
Mr Toller --That is one of the proposals of the amendments. We would also review the whole of the current requirements for certification for aerial work, and it is in that context that we are including commercial sports aviation. Non-commercial sports aviation has never required an AOC for flying training.
Senator O'BRIEN --I understand that.
Mr Toller --And one of the difficulties we have, Senator, and I think you will understand this particularly, is that the Civil Aviation Act was amended to remove the word `commercial'; however, CAR206 has never been amended. We have this anomalous position whereby the Civil Aviation Act asks that the regulations prescribe the activities that require an AOC, but it has deliberately removed any hint of commercialism because it should be risk based, and yet the word `commercial' still stays within CAR206. Another part of that amendment, I believe, should be to remove the word `commercial' to be consistent with the amendments that were made recently to the act.
Senator O'BRIEN --Have there been any consultations with the minister or the minister's office about this?
Mr Toller --The minister's office was informed of our thinking, but that is all.
Senator O'BRIEN --Before or after this lunch?
Mr Toller --Before or after I--
Senator O'BRIEN --Told Mr Middleton at lunch.
Mr Toller --Way before.
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