Dear Friends & Colleagues,
After a long and anxious wait, we received news late on Friday of John’s favourable Administrative Appeals Tribunal result. After a 15 year wait, he can now finally exercise his ATPL privileges. The tribunal's full 50 page decision is available via the link to our website below:
Re O'Brien and Civil Aviation Safety Authority [2015]
The tribunal found that despite John’s severe protanope form of CVD, he is not likely to endanger the safety of air navigation in the role of captain. The result is a major victory and essentially means that he can now progress his career to the fullest extent with any domestic airline within Australia.
The tribunal did still leave a number of restrictions in place as outlined below:
- The class 1 medical certificate is only valid for operations within Australia;
- The applicant is not permitted to conduct night time operations other than as or with a qualified co-pilot; and
- The applicant must disclose to his employer, any person lawfully training, assessing, endorsing or re-endorsing him on any aircraft in respect of his Air Transport Pilot Licence, and other assigned flight crew members of his colour vision deficiency.
Several times, we have proposed a condition similar to (3) as an acceptable means of compromising with CASA for CVD pilots seeking to operate in an ATPL environment. From a practical point of view, this restriction poses no major obstacles.
Condition (1) is largely based on political and policy issues due to Australia’s (until recently) evidence based-CVD standards compared to the rest of the world. It is a restriction which may still take some time to fully overcome. There has been some confusion regarding the wording of this particular restriction, as many pilots also have a medical certificate which states “Holder does not fully meet requirements of ICAO Convention Chapter 6 of Annex 1.” CASA’s
website states that this restriction allows the pilot to operate overseas provided they seek advance permission from the appropriate regulatory authority of that country.
We will be seeking more clarification on the wording of restriction (1) in the coming days and weeks. Ultimately, until such a time as CASA starts becoming proactive and leading the world on CVD issues, rather than following, CVD pilots like John will potentially still be limited to Australian airspace.
Condition (2), while not ideal, does not have any effect on John operating at night (or IFR) in a multi-crew environment. At first glance, it appears as though the tribunal may have overlooked the fact that under his previous CPL privileges, he was able to fly unrestricted at night in a single pilot environment and for more than a decade until early 2014. Early last year, John was forced by CASA to undergo the CAD test which he failed and as a result, this particular night restriction was added to his medical certificate. From reading the decision, it appears that the tribunal focused their attention primarily on the ATPL side of things. Perhaps inadvertently, they may have assumed that he would only ever be flying in a two-pilot airline cockpit and therefore this particular restriction posed no burden. Possibly, this is without having fully considered the consequences as they related to his CPL in the event that he ever wishes or needs to return to general aviation single pilot operations in the future.
We will also be seeking more clarification on restriction (2), given that it does appear to contradict the tribunal’s acceptance that the earlier 1989 Denison decision was conducted as a test case that related to commercial pilots. We continue to believe that all CVD pilots (including deutans and protans) should be allowed to operate unrestricted at night, as has been the practice since the Denison decision and until CASA’s regressive actions began last year. We will continue to fight hard to ensure this occurs.
While the tribunal was at pains to point out that they did not view John’s case as a test case, it is most certainly a major victory in the overall scheme of things. Comparisons can be drawn to the earlier Pape and Denison AAT decisions:
“The success of my own appeal was a just reward for a great deal of hard work and wide support, but the victory was bitter-sweet, as the Authority of the day refused to let the benefit of my success flow to any other pilot with the colour vision problem. That in turn led to a second far more comprehensive appeal for all the colour defective pilots of Australia. This case was nominally on behalf of Jonathon Denison, a young colour defective commercial pilot who had qualified for night flight in New Zealand, but who was prohibited from night flight in Australia. By mutual agreement between the parties, it was decided by the AAT to treat the Denison appeal as a wide-sweeping test case.” – Dr Arthur Pape
While John’s result is not 100% perfect, it is a massive leap forward given that it is the first time in the world that a protanope CVD pilot has successfully challenged an aviation authority in respect to being allowed to fly as a captain in an airline environment. While this is a good victory and sets a precedent, the war is far from over and we must continue to fight hard to ensure that all CVD pilots receive the justice they deserve. Whether that happens with subsequent legal challenges in the future or with political pressure remains to be seen. None of this is a quick or easy process but we remain as resolute and committed as ever.
Senator David Fawcett has already been informed of the result and we will be having further discussions with him to see what else might be able to be done to further advance our campaign both in Australia and abroad.
We will provide more updates again in the coming weeks and months, but for now, thank you to all who have supported John’s case. This result would not have been possible without each and every one of you!