There is probably scope for a representative action (in the vernacular – a ‘class action’) on the grounds of disability discrimination, given the broad definition of ‘disability’ in the Commonwealth Disability Discrimination Act. However, it would be a very expensive piece of litigation, noting that there would be a conga line of taxpayer-funded lawyers, medical zealots and experts with their snout in the CVD industry trough ranged against the claimants. Also, the Disability Discrimination Act itself notes that “subsection 98(6B) of the Civil Aviation Act 1988, which allows regulations made under that Act to contain provisions that are inconsistent with this Act if the inconsistency is necessary for the safety of air navigation.” Of course, that merely begs the question, but it would be a very expensive route to get an authoritative answer.
Seems to me the weak point continues to be the CAD test, because everyone knows it doesn’t simulate operational sh*t.
In John O’Brien’s case, CASA’s submission to the AAT was that the CAD test is “a simulation of an aspect of a task required in an operational situation”. However, CASA also had little choice but to concede, in its submissions, that the expert they called had acknowledged that the CAD test “
does not simulate an aviation task”. The AAT observed that:
The information obtained by CASA from [CAD] testing of Mr O’Brien is little more than that to which they were already aware, having had the diagnosis of protanopia confirmed in previous tests.
However, as predicted, CASA submitted and the AAT had little choice but to accept that the AAT does not have jurisdiction to review CASA’s decision to determine the CAD test.
CASA’s submission was that even if the CAD test is not one that can reasonably fall within the description of a test that “simulates an operational situation” in terms of CASR 67.150(6)(c):
- the AAT does not have jurisdiction to review CASA’s decision to determine the CAD test for the purposes of CASR 67.150(6)(c); and
- the Applicant still hadn’t passed any of the prescribed tests.
In other words, CASA said that even if the CAD test does not simulate an operational situation as required by the law: Too bad; too sad. The AAT cannot do anything about it and the Applicant’s career certainty, and other people in like circumstances, can go hang.
The only clear path to review of the decision to determine the CAD test seems to me to be judicial review in the Federal Court. All that is required is the Court to declare that the determination of the CAD test is not a valid test for the purposes of CASR 67.150(6)(c) in one applicant’s case, and that declaration is effective in respect of all applicants in similar circumstances. If an applicant can knock the CAD test over, that would be a major step forward (really a repositioning close to where we were before the zealots started their recent crusade).
The question whether the CAD test falls within the description of a test that “simulates an operational situation” in terms of CASR 67.150(6)(c) shouldn’t be one that requires a conga line of taxpayer-funded lawyers, medical zealots and experts with their snout in the CVD industry trough to answer. That question is one on which the opinion of
operational experts, not medical experts, is relevant. And we know what any objective operational expert would say about what operational situation the CAD test simulates.
Of course a valid test for the purposes of CASR 67.150(6)(c) needs to involve coloured lights. But we already know what the most safety-critical operational situation involving coloured lights is for pilots: PAPI. Even the medical zealots and experts with their snout in the CVD industry trough acknowledge this (but change the goalposts to ‘prove’ their pre-judgement, in the face of evidence that pilots with CVD handle PAPI approaches as well as, and as badly as, the non-CVD pilot population.)
So if the Court:
- declared the CAD test not to be a test validly determined for the purposes of CASR 67.150(6)(c) in the case of pilot applicants; and
- ordered CASA to determine a PAPI simulation or real PAPI approaches for those purposes
the required standard would be restored to an evidence-based standard.
The battle then would be to prevent the medical zealots and experts with their snout in the CVD industry trough from designing something called a PAPI simulation but in fact, like the CAD test, merely a glorified colour vision test. A proper simulation needs realistic environmental integrity.