it's a battle of law; not justice
Correct.
are the only 'letters' that really mean anything here AAT?
Maybe not. The Federal Court may have an inevitable role to play.
My WAG is that the key issues in the AAT will include:
- whether the AAT has jurisdiction to decide that the determination of the CAD test is not a valid determination for the purposes of CASR 67.150(6)(c), because the CAD test does not ‘simulate an operational situation’, and
- whether the AAT has jurisdiction to determine its own test and subject the applicant to that test, and find that he is able to pass that test (in which case all this unnecessary stupidity goes away).
My WAG is that CASA will argue that the AAT does not have jurisdiction to do either and therefore - so the argument will continue - the AAT cannot find anything other than that the applicant has failed the test determined by CASA. The inevitable consequence – so the argument will continue – is that the applicant does not meet the colour perception standard. (The war is not lost there for the applicant, by the way, but the aim must be to try to make the entire stupidity go away by getting CASA to determine tests that simulate operational situations.)
As anyone with any aeronautical experience knows, the CAD test doesn’t ‘simulate’ ****, just as the Ishihara plate test doesn’t simulate ****. (No…. wait, I remember now: On a standard ILS approach, a bunch of pink marshmallow shapes with coloured numbers in the middle appear in the windscreen to tell you your height …)
The CAD test is just another glorified colour vision test.
However, CASA is evidently going to try to defend the CAD test as a test that simulates an operational situation in accordance with CASR 67.150(6)(c). That suggests to me either that:
- the PMO is stubbornly refusing to accept advice to the effect that the CAD test doesn’t simulate ****
- the people advising the PMO do not have sufficient aeronautical experience to know that the CAD test doesn’t simulate ****, or
- everyone’s too scared, proud or embarrassed to revoke the determination of the CAD test and instead determine some tests that actually simulate actual operational situations.
(Must feel comfy to be able to spend all that time and (other people’s) money defending the indefensible, while putting all current and aspiring pilots with colour vision deficiencies through unnecessary trauma in the interim.)
If it turns out that the AAT does not have jurisdiction to find the CAD test is not a valid test and determine its own test, that’s not the AAT’s fault. Its jurisdiction is not a matter of its choice or discretion.
However, as I said, all is not lost if that happens.
First, it is still open to the AAT to find that there should be no “no ATPL” condition on the applicant’s medical certificate, even if the AAT is bound to find the applicant is, as a consequence of the operation of CASR 67.150(6), effectively deemed not to meet the colour perception standard.
Secondly, the Federal Court undoubtedly has jurisdiction to make orders prohibiting CASA from using the CAD Test and requiring CASA to determine tests that actually simulate operational situations, if the Court can be convinced that the CAD test does not simulate an operational situation in terms of CASR 67.150(6)(c). That shouldn’t be too hard. A few pilots with a century or so and a hundred thousand hours or so of combined experience across the aeronautical spectrum averring to the fact that the CAD test doesn’t simulate any operational situation in which they’ve ever been involved, should do it. (What pilot with even a modicum of aeronautical experience would be prepared to swear an affidavit that says the CAD test simulates an operational situation? What would that operational situation be? Watching a youtube video of the old ‘pong’ computer game, while high on LSD?
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Hopefully, if and by the time the Federal Court option becomes inevitable, someone will have given CASA advice to the effect that its prospects of success in defending the CAD test as test that ‘simulates an operational situation’ in terms of CASR 67.150(6)(c) are somewhere between buckley’s and none, and someone in CASA will listen to that advice. It shouldn’t have to get that far, but it seems to me that the relevant decision maker in CASA is currently oblivious to what CASR 67.150(6)(c) means.