Pudniks and CASA [2021/5950] [Archive]

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skinduptruk

9th Dec 2021, 04:44

Hello all,

Glen Buckley encouraged me to share my story here, to gather feedback, and for ease of reference.

To paraglide or hang glide in Australia, one must be a member of the sports aviation federation of Australia (SAFA nee HGFA). The civil aviation order (CAO) 95.8 refers.

In Mar 2020, SAFA suspended my paragliding membership with no right of reply, and no right of appeal. This was for paragliding on Fri 13 Mar 2020 when no COVID lockdowns were in force, although SAFA wanted to lockdown anyway (to virtue signal I suppose). This membership suspension was unlawful under the Administrative Appeals Tribunal Act 1975 (imho). Also the Australian Constitution says only the courts shall decide such matters.

In Aug 2020, I submitted my Part 149 paperwork to CASA to start my new paragliding organisation. Other Part 149 ASAOs are RAAus (GA) and APF (parachutes). SAFA is not yet an ASAO.

In May 2021, CASA tasked NSW Police to confiscate my wing with no warrant and no formal charges. CASA also tasked the Commonwealth Dept of Public Prosecution (CDPP) to investigate me for “flying an aircraft without a licence / unregistered aircraft (up to 2 years jail)” which remains ongoing six months later. The wing remains held with no formal charges. CASA is suggesting a paraglider is an aircraft despite its mass of 20 kg and airspeed of 20 kts, with no engine, no fuel, and no medical checks for pilots.

In July 2021, CASA wrote to confirm they are refusing to review my Part 149 paperwork, pending the ongoing CDPP investigation (which CASA started, then delayed by months by not providing basic information to the CDPP).

In Aug 2021, I referred CASA to the Administrative Appeals Tribunal (AAT) for their misfeasance re refusing to review my Part 149 paperwork in good faith, which they have held for over 1 year now. The link to the AAT matter is below (non-url mode sorry, due to being a new user).

2021/5950 Pudniks and Civil Aviation Safety Authority (http://online.aat.gov.au/eCaseSearch/Home/Details?fileno=2021%2F5950)

Cheers,
Kurt.

tussy

9th Dec 2021, 07:19

Pardon me, but were you a member at the time of the alleged offence. How can such a cancellation be retrospective??

lucille

9th Dec 2021, 21:15

As I read this, your only so called crime was to fly during Covid against the recommendation of SAFA. Is this correct?

If this is correct then your plight is yet another terrifying example of bureaucratic over reach.

Our problem is that these bureaucrats have learned to use the bulltish “safety” card to scare their political masters into compliance.

Lead Balloon

9th Dec 2021, 22:42

In Mar 2020, SAFA suspended my paragliding membership with no right of reply, and no right of appeal. This was for paragliding on Fri 13 Mar 2020 when no COVID lockdowns were in force, although SAFA wanted to lockdown anyway (to virtue signal I suppose). This membership suspension was unlawful under the Administrative Appeals Tribunal Act 1975 (imho). Nah. The AAT Act has nothing to do with it. Also the Australian Constitution says only the courts shall decide such matters.Nah. You’re going to the AAT and the AAT isn’t a court.

In Aug 2020, I submitted my Part 149 paperwork to CASA to start my new paragliding organisation. Other Part 149 ASAOs are RAAus (GA) and APF (parachutes). SAFA is not yet an ASAO.And when you satisfy the criteria for the grant of a Part 149 approval, you will be entitled to it.

In May 2021, CASA tasked NSW Police to confiscate my wing with no warrant and no formal charges. CASA also tasked the Commonwealth Dept of Public Prosecution (CDPP) to investigate me for “flying an aircraft without a licence / unregistered aircraft (up to 2 years jail)” which remains ongoing six months later.Nah. CASA doesn’t task police and the CDPP does not do investigations. CASA can inform police of alleged offences and police can choose to investigate them and prepare a brief of evidence for the consideration of the CDPP. Or CASA can conduct the investigation itself and prepare a brief for the consideration of the CDPP. Maybe SAFA dobbed you in to the police?

The wing remains held with no formal charges. CASA is suggesting a paraglider is an aircraft despite its mass of 20 kg and airspeed of 20 kts, with no engine, no fuel, and no medical checks for pilots.It’s an aircraft. The clue is in the word “wing”. It's a "machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface." CASA regulates gliders and model aircraft that weigh less than 1kg.

In July 2021, CASA wrote to confirm they are refusing to review my Part 149 paperwork, pending the ongoing CDPP investigation (which CASA started, then delayed by months by not providing basic information to the CDPP).The CDPP doesn’t conduct investigations. If it is doing anything, it is considering whether or not to commence a prosecution, on the basis of the brief given to it, in the context of the Prosecution Policy of the Commonwealth.

In Aug 2021, I referred CASA to the Administrative Appeals Tribunal (AAT) for their misfeasance re refusing to review my Part 149 paperwork in good faith, which they have held for over 1 year now. The link to the AAT matter is below (non-url mode sorry, due to being a new user).The AAT isn’t concerned about misfeasance and bad faith. It’s interested in whether your application satisfies the criteria for the grant of a Part 149 approval. You should focus on those criteria and showing the AAT that they are satisfied.

CASA will use whatever tactics they can to delay and put you in as bad a light as possible. Welcome to the party.

Squawk7700

10th Dec 2021, 11:23

There appears to be a series of items missing in your recollection of events from between March 2020 and May 2021.

What happened during this time in terms of your flying activities?

Wizofoz

11th Dec 2021, 00:05

I'm an active sailplane pilot and former skydiver.

It has been to the great advantage to sport aviation in Australia that CASA and its' predecessors have ceded authority to sporting aviation organistionsto self administor and regulate. It has kept costs down and meant experts in the actual activity make rules, train and administrate.

They are far from perfect, but if nothingelse, your story highlights why it's a good dea to keep within the framework of your association and avoid direct interaction with CASA.
As such, while I am not saying your treatment is justified or proportionate, there are two asects I find troubling.

If you dont like a rule, seek to change the rule. Not agreeing with a rule is not an excuse to break it, and deliberatley doing so will and should lead to consequences.

Secondly, and much worse, I abhore the idea of an individual being able to start his own associtaion in response to disciplin from an existing one.

We had exactley this situation when i was jumping- An individual with a string of violations finally went to far, and had a number of ratings permenantly suspended.

His response was to start his own association, start an independent operation, and rack up a string of saftey incidents that he, as master of his own federation, was the sole arbitor of.
He eventually left with a string of bad debts having put the whle sport in a very bad light.

There is no point having a regulatory authority f anyone subject to it can just start there own assocation and make there own rules.
I'm sorry if you have been badly treated, but I oppose your solution.

Lead Balloon

11th Dec 2021, 00:59

Wizofoz

11th Dec 2021, 11:04

But what's the safety purpose of providing a monopoly to one person (that includes corporate entity) to be the ASAO of a particular sector of aviation? I know that CASA pretends that limiting the number of ASAOs has some relevance to its religion 'the safety of air navigation', but that's like saying the number of AOCs should be limited.

Not really- all AOC holders are beholden to CASA. Having a delegate organisation basically makes them the "CASA" of that sector. Imagine the chaos if you could just start your own CASA, A regulator must have authority to regulate, including the ability to limit/discipline those that trangress. This is taken away if people can just shop for the authority they prefer.

tussy

11th Dec 2021, 12:26

The way "natural justice" works in Australian racing sailing. one assumes that hang gliding does something similar.......

We have a hypothetical new chum who wants to play. He buys ten tons of highly competitive carbon fibre racing yacht for a million or more plus hires some young guns to help him race it........

1. Now Chummy is a former pennant squash player champion or a motorcycle racer., doesn't really matter, he is ultra competitive and highly aggressive - sublimation from a hard day at martin place, etc. he knows the rules and has the technology and nobody is going to stop him, etc.

2. So chummy storms on to the race course and proceeds to throw his new toy around oblivious or not to the danger of collision or injury of fellow competitors. he may even be operating within the rules....just.

3. after a number of incidents or near misses, potentially involving amputation or other serious injury, not to mention very expensive insurance claims, his fellow competitors get aroused...... The "discipline" process starts...

4. Chummy is approached at the bar by a senior member who quietly and politely suggests he might like to moderate his behaviour on the race course, "a word to the wise" etc.

5. Chummys behaviour does not improve. next suggestion from same senior member; "would you like some coaching from XXXXX?"

6. We insist on some coaching from XXXX.

7. We will refuse to accept your race entry and so will everyone else.

8. We will advise your insurer of (7).

I have yet to see this system fail. What do hang gliders do?

Roj approved

11th Dec 2021, 20:34

43Inches

11th Dec 2021, 22:12

10. The “skipper” would have a few to many Rums and “fall down” in the showers.

Reminds me of the unwritten Olympic preparation that some teams use, certain European nations used to drinking large amounts of Ales would take fellow teams out for drinks the nights before competition and drink them under the table. The protagonists were more than capable of competing with hangovers or even slightly inebriated, the targets not so. Led to some less than optimum performances throughout the 80s-90s and who knows even now.

Squawk7700

12th Dec 2021, 04:42

Welcome back Sunfish. How was your holiday from pprune?

Lead Balloon

12th Dec 2021, 05:14

Not really- all AOC holders are beholden to CASA. Having a delegate organisation basically makes them the "CASA" of that sector. Imagine the chaos if you could just start your own CASA, A regulator must have authority to regulate, including the ability to limit/discipline those that trangress. This is taken away if people can just shop for the authority they prefer.And ASAOs are not ‘beholden to CASA’? CASA just lets them do whatever they like? Really? What are all of the pages of regulations in Part 149 about?

Are you sure ASAOs are a ‘delegate’ organisation? Sure? Even if they are, doesn’t the delegator have control over the delegatee?

Don’t AOC holders have an ability to discipline/limit personnel that transgress? They don’t need any approval or delegation from CASA to do that.

Only in Australian aviation could this make sense to some.

Wizofoz

12th Dec 2021, 05:31

And ASAOs are not ‘beholden to CASA’? CASA just lets them do whatever they like?.

They allow them to regulate, train, oversee airworthiness,-It has to be with the CARs, but they have a lot of lattitude. For instance, saftey reporting and requlation withn gliding is pretty much totally in-house GFA unless there is injury. And that's a GOOD thing.

Really? What are all of the pages of regulations in Part 149 about?

I said they regulate- I didn't sa they SET the regulations- CASA doesn't set the CAOs either, they enforce them.

Are you sure ASAOs are a ‘delegate’ organisation? Sure? Even if they are, doesn’t the delegator have control over the delegatee?

Yes. What's your point?

Don’t AOC holders have an ability to discipline/limit personnel that transgress?

No, not really. They can't suspend or cancel their licence. They can't even take employment action unless it confirms with employment law.

They don’t need any approval or delegation from CASA to do that. Do what? Tell someone off and give them a paid holiday? That's about the extent of their authority. The GFA and APF on the other hand can make it ILLEAGAL for someone to continue to jump or fly a glider.

Only in Australian aviation could this make sense to some.

Well, in the case of the GFA it's work exceptionally well for decades. In the UK the similarly run BGA had to cede athority to EASA before Brexit, and ithad terrible consequences for British gliding.

Wizofoz

12th Dec 2021, 05:33

Lead Balloon

12th Dec 2021, 05:55

They allow them to regulate, train, oversee airworthiness,-It has to be with the CARs, but they have a lot of lattitude. For instance, saftey reporting and requlation withn gliding is pretty much totally in-house GFA unless there is injury. And that's a GOOD thing.

I said they regulate- I didn't sa they SET the regulations- CASA doesn't set the CAOs either, they enforce them.

Yes. What's your point?

No, not really. They can't suspend or cancel their licence. They can't even take employment action unless it confirms with employment law.

Do what? Tell someone off and give them a paid holiday? That's about the extent of their authority. The GFA and APF on the other hand can make it ILLEAGAL for someone to continue to jump or fly a glider.

Well, in the case of the GFA it's work exceptionally well for decades. In the UK the similarly run BGA had to cede athority to EASA before Brexit, and ithad terrible consequences for British gliding.
So it’s beyond the wit and wisdom of Australians to create another organisation with same or better competence than the e.g. the GFA and have it run concurrently with the GFA? It would be raining aluminium or fibreglass?

OZBUSDRIVER

12th Dec 2021, 07:41

Most important question ...Did SAFA actually put in writing their COVID restrictions prior to your flight on that black Friday? Using a medical argument to stop flying like we had at our aeroclub was pretty well documented as per reference to Vic regulations. Was your situation the same?
EDIT to add. Vic Gov did not formally enact stage 3 restrictions until March 28th
EDIT to EDIT First state of emergency was not called until March 16th

josephfeatherweight

12th Dec 2021, 09:20

Welcome back Sunfish. How was your holiday from pprune?

Ha, I love that! Nice one, Squawk! :ok:

Squawk7700

12th Dec 2021, 09:38

Ha, I love that! Nice one, Squawk! :ok:

He’s like 95% of prisoners in Victoria. They just keep coming back :-)

skinduptruk

12th Dec 2021, 12:10

wow, awesome feedback so far, thanks!

i have many things to say in due course. and some AAT case law links too (via the austlii legal database).

quick note, SAFA is not yet a valid P149 ASAO. and CASA told me they cannot control SAFA until they do become P149 valid. a tricky situation!

PS. in my experience to date, CASA have been adversarial, petty, and vindictive. just like the many sad stories compiled in the below document. cant make this stuff up :/

Submission to Aviation Safety Regulatory Review by ProAviation (Paul Phelan, 2014).

Squawk7700

12th Dec 2021, 19:20

Unfortunately we can’t see your attachment as you are new here and need to have made more posts.

Wizofoz

12th Dec 2021, 20:17

So it’s beyond the wit and wisdom of Australians to create another organisation with same or better competence than the e.g. the GFA and have it run concurrently with the GFA? It would be raining aluminium or fibreglass?

If that organisation is set up specifically to avoid complience with the GFA rules, as was the specific case I mentioned in skydiving, it's not exactley a boon to saftey, is it?

skinduptruk

12th Dec 2021, 21:09

If that organisation is set up specifically to avoid complience with the GFA rules, as was the specific case I mentioned in skydiving, it's not exactley a boon to saftey, is it?

id be happy to attach my full P149 paperwork eg my paragliding operations manual (PGOM) + risk logs as the heart of the safety management system (SMS) when i know this forum system better and get extra post privileges etc. then you can judge for yourself :)

equally, i might ask if safety is served by a SAFA monopoly, where all my mates are too scared to reply to my emails for fear of being “banned for no reason” too. is that a good safety culture where pilots feel supported to raise any concerns?

PS. i have confirmed under FOI that key CASA staff are members of SAFA, but have not signed a conflict of interest statement. if they were to approve my P149, they too could lose their PG licence for “no reason” and ironically CASA could do nothing about it :o

skinduptruk

12th Dec 2021, 21:27

The AAT isn’t concerned about misfeasance and bad faith. It’s interested in whether your application satisfies the criteria for the grant of a Part 149 approval. You should focus on those criteria and showing the AAT that they are satisfied.

CASA will use whatever tactics they can to delay and put you in as bad a light as possible. Welcome to the party.

thx LB, i more or less agree with everything you wrote. to get the ball rolling on links to AAT case law (per below), imho CASA conduct is very much within the scope of my request for “review of decision” of CASA ignoring my P149 paperwork aka guilty until proven innocent aka the dreaded “fit and proper person” (neatly never defined by CASA) issue…

para 95 … Each of those contraventions was, in the Tribunal's opinion, merely a trivial, technical contravention and, taken individually or collectively, warranted no more than counselling action by CASA. In these circumstances cancellation of the applicant's pilot licence, thereby jeopardising his aviation business and livelihood, can only be regarded as grossly excessive and unreasonable and, therefore, highly inappropriate.

Repacholi and Civil Aviation Safety Authority [2003] AATA 573 (18 June 2003) (http://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2003/573.html)

Lead Balloon

12th Dec 2021, 21:58

If that organisation is set up specifically to avoid complience with the GFA rules, as was the specific case I mentioned in skydiving, it's not exactley a boon to saftey, is it?I get that the symbiosis between CASA and organisations like GFA is a very cosy one. But it is patent nonsense to suggest that it follows that no other organisation could achieve the same or better outcomes operating concurrently with GFA. The question is whether the rules and systems of the other organisation deliver the same or better outcomes. That's what all those pages in Part 149 are about, surely...

Lead Balloon

13th Dec 2021, 00:46

CASA told me they cannot control SAFA until they do become P149 valid. a tricky situation!If someone in CASA told you that, Kurt, that someone is either incompetent or bull****ting.

The current exemption relevant to you (CAO 95.8) was issued by CASA - the most recent version was issued by Ms Spence on 20 Nov 2021. That exemption can be changed. That exemption operates by reference to a "relevant sport aviation body". Guess who decides whether or not a body is a "sport aviation body" for the purposes of the aviation rules? If a body is 'out of control' it can be dealt with. CASA just repeals its status as a sport aviation body for the purposes of the aviation rules. It's actually CASA's job to keep them under control.

skinduptruk

14th Dec 2021, 02:34

9 Jun 20

Sport Aviation Operations Officer
General, Recreational and Sport Aviation Branch
CASA\Stakeholder Engagement Group

OFFICIAL

Hi Kurt,

A review of the communications that you have Cc’d to CASA Sport has been undertaken.

It has been noted that a significant proportion of the email content appears to be related to an ongoing dispute between yourself and other SAFA members and/or SAFA staff. Please note that CASA’s functions as defined in Section 9 the Civil Aviation Act 1988 relate to the safety of air navigation, they do not however extend to dispute resolution.

For clarity regarding the current structure of the civil aviation legislation relating to sport aviation; the only lawful manner of operating a paraglider or hang glider within Australian territory is by adherence to all requirements contained in Civil Aviation Order (CAO) 95.8. The effect and purpose of CAO 95.8 is to grant particular exemptions (in defined instances) from the legal requirements as specified in the Civil Aviation Act (CAA) 1988, the Civil Aviation Regulations (CAR) 1988 and the Civil Aviation Safety Regulations (CASR) 1998.

For example, the CAA requires that all civil aircraft hold registration (CAA 20AA refers) and all pilots of aircraft be licenced (a licence issued under CASR Part 61 or foreign equivalent) (CAA 20AB refers). The operation of an aircraft outside of these requirements is an offence against the Act which bears serious penalties, including possible imprisonment. CAO 95.8 affords the only means of enabling compliant participation in paragliding and hang gliding in Australia.

For the avoidance of doubt; any person wishing to operate a paraglider or hang glider in Australia lawfully must operate in accordance with the requirements of CAO 95.8. Relevant provisions from CAO 95.8 are provided for information;

4 Licence not required

4.1 For section 20AB of the Act, a person is authorised to perform a duty essential to the operation of an aircraft to which this Order applies without holding a flight crew licence if he or she complies with the conditions set out in subsections 6 and 7.

5 Aircraft not required to be registered

For paragraph 20AA (1) (b) of the Act, an aircraft, to which this Order applies, is not required to be registered under CAR 1988 when it is flown in accordance with the conditions set out in subsections 6 and 7.

6 General conditions

6.6 An aircraft to which this Order applies must be operated in accordance with the rules, regulations and directions made by the HGFA for the operation of such aircraft and specified in the HGFA Operations Manual or in any other manual or document of the HGFA.

(Note: SAFA and HGFA are one and the same entity for the purpose of the civil aviation legislation.)

CASA’s current regulatory relationship with SAFA members is by means of the approved SAFA Operations Manual (current CASA Approved version is V20180427) which contains the operational aviation requirements including SAFA’s oversight of an approved system of training and certification (not licencing) of paraglider and hang glider pilots. The scope of the Operations Manual does not include member complaints, behavioural misconduct of members, disciplinary procedures of the organisation, etc. These matters are therefore outside of CASA’s remit and there is no regulatory means currently for CASA to review disciplinary decisions made by SAFA.

CASA Sport Aviation understands that you are a current financial SAFA member. Therefore:

For a current SAFA member whose flight privileges have been suspended, SAFA’s disciplinary procedures apply. Noting that - Should a person undertake to operate a paraglider or hang glider while not holding SAFA membership, (i.e. no regulatory relationship existing between the person and SAFA), the situation would fall under the remit of CASA. Should this situation occur, it would be managed in accordance with the CASA Coordinated Enforcement Process as outlined in the Coordinated Enforcement Manual (casa.gov.au/publications-and-resources/publication/enforcement-manual).
For a current SAFA member involved in a dispute with the SAFA organisation, CASA has no civil aviation legislative or regulatory ability to interfere or interject. Other avenues which may be more appropriate to explore are dispute resolution services.

I trust this explains the current regulatory sport aviation scheme.

Please refrain from forwarding emails to CASA that relate to membership issues/disputes or disciplinary matters currently being undertaken by SAFA. Should you identify specific regulatory issues in the future that are within CASA remit please make email contact via (sport email).

skinduptruk

14th Dec 2021, 03:13

If a body is 'out of control' it can be dealt with. CASA just repeals its status as a sport aviation body for the purposes of the aviation rules. It's actually CASA's job to keep them under control.

3000x PG pilots would be grounded if CASA were to suspend SAFA operations. Enough to annoy the Minister perhaps…

CASA stated they do not interfere when SAFA acts unlawfully. Hence my “dispute” with SAFA.

The icing on the cake was when CASA said due to my dispute with SAFA, CASA refused to review my P149 paperwork (see what CASA did there - how cute). That was a bridge too far. So I took CASA to the AAT for a review of that particular decision.

PS. To pass the time, I have asked CASA freedom of information (FOI) for a copy of all PG accident reports (or accident investigation reports) that SAFA provides to CASA. The initial CASA reply has been to suggest that CASA does not hold such data. If true, then SAFA really is left to run things without oversight. The FOI officer hinted that if I were to persist with requests for safety reports, my request could be deemed vexatious. My reply was that I would enjoy a situation where CASA tried to justify denying access to basic safety reports. So it seems the adversarial CASA culture goes all the way to the core, even for basic safety report matters. I remain hopeful the new CEO can address the current CASA culture problems.

PPS. Currently only RAAus + APF are P149 ASAOs (and maybe the gliders too). I note an ABC news item about a review of parachute operations. Here is most of the link: Husband whose wife died in Mission Beach skydiving accident launches legal action - ABC News. www.abc.net.au/news/2021-09-09/husband-sues-over-wifes-queensland-skydiving-death/100447064

Wizofoz

14th Dec 2021, 03:28

id be happy to attach my full P149 paperwork eg my paragliding operations manual (PGOM) + risk logs as the heart of the safety management system (SMS) when i know this forum system better and get extra post privileges etc. then you can judge for yourself :)

equally, i might ask if safety is served by a SAFA monopoly, where all my mates are too scared to reply to my emails for fear of being “banned for no reason” too. is that a good safety culture where pilots feel supported to raise any concerns?

PS. i have confirmed under FOI that key CASA staff are members of SAFA, but have not signed a conflict of interest statement. if they were to approve my P149, they too could lose their PG licence for “no reason” and ironically CASA could do nothing about it :o

So what happens when you ground a member of your organisstion for saftey breeches and they just start their own federation?

Wizofoz

14th Dec 2021, 03:31

I get that the symbiosis between CASA and organisations like GFA is a very cosy one. But it is patent nonsense to suggest that it follows that no other organisation could achieve the same or better outcomes operating concurrently with GFA. The question is whether the rules and systems of the other organisation deliver the same or better outcomes. That's what all those pages in Part 149 are about, surely...

You've just avoided any reply to the concept of someone starting their own organisation to get around discilplne from an existing one. Whay would that be?

Lead Balloon

14th Dec 2021, 04:32

Well it depends upon what you mean by "discipline". My experience and observation is that these organisations are as much about personalities and egos and strong opinions and factions and pettiness and vindictiveness as they are about the objective interests of the people 'regulated' and safety. A lot like CASA, really.

If the 'discipline' is objectively necessary and proportionate to some risk, confirmed by external merits review if the person subject to it chooses to seek a review, that's fine. The folks who aren't amenable to that kind of discipline are going to smear themselves across a hillside in any event. And I doubt whether they'd be able to convince CASA that the proposed new organisation has the competence and capacity to join the cosy symbiosis.

skinduptruk

14th Dec 2021, 05:02

good question. the issue is "for safety breaches".

atm SAFA can strip licences based on "bringing the sport, the club, or yourself into disrepute". how is that judged exactly? kangaroo court.

imho clubs should only ban members who have (real) court findings against them. atm clubs are jumping the gun (imho). the Aus Constitution suggests only a court shall decide freedoms.

anyone should be entitled to apply to start a Part 149 org. with approvals subject to the requirements being met. to be frank, it's quite clear that CASA has zero genuine interest in allowing new players into the P149 space. CASA use the fit and proper person excuse with no definitions to be seen.

read the new P149 regs, where CASA can use "any means" to regulate clubs. blackmail, stalking, soliciting comments from people with other agendas (biz competitors) etc. it seems CASA always wants to push the absolute limits of unlawful conduct in pursuit of ever more "safety" goals. the concepts of Rule of Law and Aus Constitution seem to get forgotten outright. why does Senate estimates allow such CASA conduct to be possible, if not probable? my theory - it serves as a test case of what Aus citizens will tolerate, and what the courts can and/or will do about it to push back. it used to be called justice.

PS. i wrote a letter to Pip Spence the new CASA CEO. i can post it next. it got blocked by the staff due to my being a "potential criminal" given the indefinite CASA investigations. so we can see how CASA paints themself into a corner and simply does not care nor listen to industry or recreational sports people.

skinduptruk

14th Dec 2021, 05:25

TO: Director of Aviation Safety, Pip Spence, CEO CASA.

***

Good afternoon Pip,

I have been reading up extensively on the 30 year history of CASA nee CAA in general aviation matters.

I sincerely wish you well on the transformative culture change that is clearly desperately required.
I also read your recent briefing to industry and I have formatted my letter as a response to your briefing (please find your text in green below).

I have made it clear to everyone in CASA that a key part of our job is engagement and listening.

CASA Investigators called me up and made allegations of illegal flying. They refused to identify their qualifications, or legal powers to do so, or the process ahead. By contrast, CASA Investigators ignore the unlawful behaviour of SAFA at every turn. I made a complaint to your ICC and his initial weak finding was that "I did not rely on the information and views of CASA". When I clarified the issue further, your ICC is so slow to investigate (currently underway on this issue), he is practically useless.

We must have effective and productive working relationships with people and organisations across all sectors of Australian aviation so that we engage on issues in a timely and meaningful way.

CASA has taken over 12 months to stall their review of my 20 page document for Part 149 self administering organisations (SAO). Faced with pressure to do something after one year, CASA now outright refuses to review my paperwork, having deemed the pending CDPP investigation "relevant" for some reason. So much for innocent until proven guilty, CASA knows better apparently. This is the same pending CDPP investigation that CASA has delayed at every turn since 1 Aug 20. I am taking this matter to the AAT, with an Interlocutory hearing set for Fri 24 Sep 21.

CASA needs to know about the challenges being faced by the aviation community and be made aware of emerging and evolving safety risks.

CASA overlooks the unlawful behaviour of SAFA, who can suspend and cancel licences for "no reason" just like CASA can. This creates a worlds-worst-practice safety culture where no one would dare to raise safety issues for fear of being banned by the club "in group" of so-called leadership. The SAFA constitution is illegal under Australian law, specifically the Administrative Appeals Tribunal Act 1975 which states a person receiving an unfavourable decision must be informed of their right of reply. Yet CASA tolerates this situation within SAFA, and within CASA, for years on end, with no explanation. This situation is inexplicable and deeply disturbing, from a modern safety culture point of view, in line with basic world safety philosophy.

To translate this engagement into practical outcomes, it is our job to listen. By that I mean we must not make judgements on the views of others before asking questions and making sure we really understand the issues being raised. And, of course, we must be ready to act.

CASA is currently making judgements on my views, without asking any questions of the unlawful behaviour of SAFA. CASA has not been acting; rather CASA refuses to review my 20 page paragliding operations manual (PGOM) in support of my Part 149 SAO application. The document is exactly structured against the CASA compliance matrix framework for ease of reference.

CASA already engages widely with the aviation community and my emphasis is intended to build and improve on these existing formal and informal communications. My intention is not to create a whole new way of operating, but rather to strengthen the relationships and communication between CASA and the aviation community.

The typical response time of CASA to a simple question is one month. So far, CASA has taken over 1 year to ponder, and now outright refuses, to review my 20 page Part 149 paperwork! I have reluctantly taken the matter to the AAT to force CASA to "do their day job". This situation is a disgrace, and by my understanding, CASA's behaviour has adversely affected all aspects (including safety) of general aviation in this consistently adversarial, petty, and vindictive manner for the last 30 years. Honestly, you do need to "create a whole new way of operating". Any reasonable person can see that.

You may believe this is a minor matter to do with fringe, recreational sports aviation such as hang gliding, paragliding, and skydiving etc. I have included some news links below to highlight that the CASA inaction and dysfunctional regulation of sporting clubs like SAFA and APF is costing lives every year, and it will continue to do so until addressed head on.

Yours Sincerely,
Kurt Pudniks BE (Hons) BSc (Hons) MIEAust CPEng

***

Husband whose wife died in Mission Beach skydiving accident launches legal action (ABC News, 9 Sep 21) (http://www.abc.net.au/news/2021-09-09/husband-sues-over-wifes-queensland-skydiving-death/100447064)

Complaints against paragliding instructor 'ignored' before fatal crash, coroner hears (ABC News, 21 Jan 15) (http://www.abc.net.au/news/2015-01-20/complaints-against-paragliding-instructor-ignored-before-deaths/6028476)

***

Wizofoz

14th Dec 2021, 08:44

skinduptruk

14th Dec 2021, 09:08

A lot like CASA, really.

Aus is descended from convicts and their jailors.

CASA must enjoy watching the clubs abuse their fake powers (which CASA can take away at any time). Therefore the clubs are desperate to show their jailors CASA how good a Chief Convict they have become in “managing” their fellow citizen.

Weak, pathetic, and unlawful. But more importantly, such a popularity contest is inherently unsafe.

Squawk7700

14th Dec 2021, 10:51

Lead Balloon

14th Dec 2021, 23:34

I'll say it again, Kurt: Welcome to the party.

At least you've quickly worked out the 'end game': CASA has already decided it's not going to approve your application. As a matter of practicality, your application is doomed.

Like "the safety of air navigation", the concept of "bringing the sport, the club or yourself into disrepute" means everything and nothing. CASA and the club are Humpty Dumpty, using those words to mean whatever they choose them to mean.

My prediction: In the unlikely event that your AAT application progresses to a point where the AAT is going to consider the merits of your application for a Part 149 ASAO certificate and could find in your favour, CASA will issue an instrument limiting the number of PG ASAO certificates so that the approval of your application would exceed that number. CASR 149.060 says:149.060 CASA may limit number of ASAO certificates

(1) For the purposes of subsection 98(5A) of the Act, CASA may issue a legislative instrument imposing limits on the number of ASAO certificates that may be issued if CASA is satisfied that exceeding the limit is likely to have an adverse effect on the safety of air navigation.

(2) A limit may be imposed:
(a) indefinitely or for a specified period; or
(b) generally or in relation to a specified class of aviation administration functions.
(3) CASA may, by legislative instrument, vary or revoke an instrument made under subregulation (1).You would have to spend around half a dozen years and a few lazy millions getting to the High Court to get a judgment on whether CASA's limitation instrument was valid, and you would probably lose. "CASA is satisfied that exceeding the limit is likely to have an adverse effect on the safety of air navigation" are Humpty Dumpty words.

An application for an ASOA certificate is subject to CASR 11.055. As you can see, CASR 11.055 is clear and concise without any subjective criteria:11.055 Grant of authorisation

(1) This regulation applies despite any other provision of these Regulations that provides for the grant or issue of an authorisation, but subject to section 30A and paragraphs 30DY(2)(b), 30DZ(2)(b) and 30EC(2)(b) of the Act.

Note 1: Under section 30A of the Act, the Court may make an order excluding a person from a particular aviation activity for a specified period (the exclusion period). Under subsection 30A(4), during the exclusion period any authorisation granted to the person for the activity is of no effect and a new authorisation to undertake the activity is not to be granted to the person.

Note 2: Under section 30DY of the Act, CASA must give the holder of an authorisation a demerit suspension notice if the holder has incurred at least 12 demerit points in relation to authorisations of the same class in a 3 year period. Under paragraph 30DY(2)(b), the holder is not entitled to be granted a new authorisation of that class during the period of the suspension.

Note 3: Under section 30DZ of the Act, CASA must give the holder of an authorisation a demerit suspension notice if the holder has incurred at least 6 demerit points in relation to authorisations of the same class in a 3 year period and has previously been given a demerit suspension notice in relation to that class of authorisations. Under paragraph 30DZ(2)(b), the holder is not entitled to be granted a new authorisation of that class during the period of the suspension.

Note 4: Under section 30EC of the Act, CASA must give the holder of an authorisation a demerit cancellation notice if the holder has incurred at least 6 demerit points in relation to authorisations of the same class in a 3 year period and has twice previously been given a demerit suspension notice in relation to that class of authorisations. Under paragraph 30EC(2)(b), the holder is not entitled to be granted a new authorisation of that class for 3 years from the date of the notice.

(1A) Subject to subregulations (1B) and (1C), if a person has applied for an authorisation in accordance with these Regulations, CASA may grant the authorisation only if:
(a) the person meets the criteria specified in these Regulations for the grant of the authorisation; and
(b) any other requirements in relation to the person that are specified in these Regulations for the grant of the authorisation are met; and
(c) any other requirements in relation to the thing in respect of which the application is made that are specified in these Regulations for the grant of the authorisation are met; and
(d) these Regulations do not forbid CASA granting the authorisation in the particular case; and
(e) granting the authorisation would not be likely to have an adverse effect on the safety of air navigation.

(1B) If another provision of these Regulations provides that this subregulation applies to the granting of the authorisation, CASA may grant the authorisation only if:
(a) the requirements of paragraphs (1A)(a) to (d) are satisfied; and
(b) granting the authorisation will preserve a level of aviation safety that is at least cceptable.

(1C) If the authorisation is an experimental certificate, CASA may grant the authorisation only if:
(a) the requirements of paragraphs (1A)(a) to (d) are satisfied; and
(b) granting the authorisation would not be likely to have an adverse effect on the safety of other airspace users or persons on the ground or water.

(2) In paragraph (1A)(a), a reference to meeting the criteria for the grant of an uthorisation includes (in the case of an applicant who is an individual):
(a) having any qualifications required by or under these Regulations for the grant of the authorisation; and
(b) having any experience required by or under these Regulations for that grant; and
(c) having successfully completed any training required by or under these Regulations for that grant; and
(d) if there is a requirement as to recency or currency of the applicant’s training or experience—meeting that requirement; and
(e) if a standard of medical fitness is required by or under these Regulations for that grant:
(i) having attained that standard; and
(ii) having been granted any medical certificate required; and
(f) if particular attributes of character are required by or under these Regulations for that grant—having those attributes; and
(g) if a standard of proficiency in an activity is required by or under these Regulations for that grant—meeting that standard of proficiency.

(3) If these Regulations limit in any way the number of authorisations of the relevant kind that may be granted, CASA may refuse to grant the authorisation if the limit will be exceeded if the authorisation is granted.

(4) For paragraphs (1A)(e) and (1B)(b), CASA may take into account:
(a) the applicant’s record of compliance with regulatory requirements (in Australia or elsewhere) relating to aviation safety and other transport safety; and
(b) the applicant’s demonstrated attitude towards compliance with regulatory requirements (in Australia or elsewhere) relating to aviation safety and other transport safety; and
(c) the applicant’s experience (if any) in aviation; and
(d) the applicant’s knowledge of the regulatory requirements applicable to civil aviation in Australia; and
(e) the applicant’s history, if any, of serious behavioural problems; and
(f) any conviction (other than a spent conviction, within the meaning of Part VIIC of the Crimes Act 1914) of the applicant (in Australia or elsewhere) for a transport safety offence; and
(g) any evidence held by CASA that the applicant has contravened:
(i) the Act or these Regulations; or
(ii) a law of another country relating to aviation safety; or
(iii) another law (of Australia or of another country) relating to transport safety; and
(h) in the case of an authorisation referred to in subregulation 11.040(2), the applicant’s financial standing and financial stability; and
(i) any other matter relating to the fitness of the applicant to hold the authorisation.

(5) For the application of paragraphs (4)(a) to (i) in relation to an applicant that is a corporation, references to the applicant include each of the officers (other than employees) of the applicant.

(6) For the application of paragraphs (4)(a) to (i) in relation to an applicant that is a member of a partnership, references to the applicant include each of the other members of the partnership.

(7) CASA may grant the authorisation in respect of only some of the matters sought in the application.Note the Humpty Dumpty words: "granting the authorisation would not be likely to have an adverse effect on the safety of air navigation"; "the applicant’s demonstrated attitude towards compliance with regulatory requirements"; "the applicant’s history, if any, of serious behavioural problems".

Note also that an applicant doesn't have to have been convicted of anything before it is possible for CASA to hold "evidence ... that the applicant has contravened ... the Act or these Regulations". In any event, CASA can take into account "any other matter relating to the fitness of the applicant to hold the authorisation".

You are upsetting and bothering people in 'authority'. That's a serious behavioural problem. Your attitude to compliance with the rules is not a good one. You're being investigated for a breach of the law. That's evidence of a contravention.

Before they have to play those tricks on you, you'll get the "Buckley Treatment". Under CASR 11.030, your application is not complete unless and until a number of criteria are satisfied. You should look at those criteria.

Some comments on the content of your earlier posts, to try to get you focussed on productive activities rather than bush lawyer rabbit holes:

You say:PS. To pass the time, I have asked CASA freedom of information (FOI) for a copy of all PG accident reports (or accident investigation reports) that SAFA provides to CASA. The initial CASA reply has been to suggest that CASA does not hold such data. If true, then SAFA really is left to run things without oversight. The FOI officer hinted that if I were to persist with requests for safety reports, my request could be deemed vexatious. My reply was that I would enjoy a situation where CASA tried to justify denying access to basic safety reports. So it seems the adversarial CASA culture goes all the way to the core, even for basic safety report matters. I remain hopeful the new CEO can address the current CASA culture problems.We don't make accident reports to CASA. Accident reports are made to ATSB. The ATSB may pass on information about accidents to CASA, but that's not the same thing and is not what you asked for.

I'd suggest you back out of the FOI rabbit hole, until you understand who has what records and you know how to frame a sensible FOI request. Being "deemed vexatious" can't be good for you when CASA comes to assess your "behaviour" and "attitude".

You say:anyone should be entitled to apply to start a Part 149 orgIndeed. And anyone is indeed entitled to apply to start a Part 149 org.

But being entitled to be granted the approval is an entirely different matter. You first have to submit an application that is "complete" as defined in CASR 11.030 and then the applicant and the application are assessed in accordance with CASR 11.055. And, as I noted above, if CASA issues an instrument limiting the number of PG ASAOs, it's instantly 'game over'.

You ask and opine: why does Senate estimates allow such CASA conduct to be possible, if not probable? my theory - it serves as a test case of what Aus citizens will tolerate, and what the courts can and/or will do about it to push back. it used to be called justice.What a bad attitude! The conduct is in the interests of the safety of air navigation. Who and what could possibly and sensibly get in the way of those interests?

You say in your letter to Ms Spence:So much for innocent until proven guilty, CASA knows better apparently.Precisely. As you can see from CASR 11.055, you don't have to be convicted of anything and CASA can still have evidence that you've contravened the rules and use it against you. "Innocent until proven guilty" would get in the way of the safety of air navigation.

You also said:The SAFA constitution is illegal under Australian law, specifically the Administrative Appeals Tribunal Act 1975 which states a person receiving an unfavourable decision must be informed of their right of reply.That's a bush lawyer rabbit hole. Do yourself a favour and back out of it.

Most important question de jour: What happened at the "interlocutory hearing set for Fri 24 Sep 21"?

skinduptruk

15th Dec 2021, 02:41

Hi LB, pls read Repacholi case law (link above).

CASA held an anon VHS tape they tried to use as evidence of his sins. he won. because the evidence showed nothing “unsafe” and showed CASA didnt have a clue about that specific plane operation to boot.

link below is a case where AAT said the Gov (ASQA) was unfair in its “fit and proper” test.

Trades College Australia Pty Ltd and Australian Skills Quality Authority [2020] AATA 812 (16 April 2020) (http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2020/812.html)

btw the High Court only costs $4,000 and one can represent oneself.

i do realise ur applying the “black hat” worst case analysis. but there may be hope yet 🤠

may i suggest, pls read these AAT links in full (Repacholi + ASQA so far, with the Qantas + CASA failure on FRMS up next).

imho the AAT has more power and more common sense than you seem to suggest. thx for your thoughtful replies tho! 🙏🏻

Lead Balloon

15th Dec 2021, 02:53

Rest assured I've read all AAT and Federal Court matters in which CASA has been a party.

The AAT has lots of power and most DPs/Members have big brains and lots of common sense. But the 'safety of air navigation' and the opinions of 'the authority' often bamboozle them. And there is nothing the AAT can do if CASA decides to limit the number of ASAO certificates it's going to issue. That's done by legislative instrument and the AAT has no jurisdiction to review the decision to issue a legislative instrument.

And what happened on 24 September?

skinduptruk

15th Dec 2021, 03:05

Most important question de jour: What happened at the "interlocutory hearing set for Fri 24 Sep 21"?

the AAT member hearing the case is Dep Pres Rayment (same as for AAT cases: ASQA link above + FRMS link below). he simply directed both myself + CASA to provide all relevant documents re my P149 application so that “he can take a look for himself”. that was end-Sep 21 and the matter is still under his review.

i called the AAT and was told that there may or may not be further info required. in any case, i will be emailed one day before any notes get published. not quite sure what purpose that serves other than “brace brace brace” 😬

PS. AAT case law re fatigue risk mgmt system (FRMS). note QANTAS took CASA’s side. they both lost. also note the outrageous claims made by CASA to suggest they are simply above the law. how ridiculous.

Australian and International Pilots Association and Civil Aviation Safety Authority [2020] AATA 3444 (4 September 2020) (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2020/3444.html)

Lead Balloon

15th Dec 2021, 06:01

And here's an AAT decision from June this year in which the AAT affirmed CASA's decision that the applicant was not a fit and proper person: Schott and Civil Aviation Safety Authority (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2021/1855.html#fn67)

I commend to you, in particular, the AAT's considerations under the heading "Fitness and propriety" starting at para 47 and the various decisions cited. I also note that the finding that the applicant was not a fit and proper person was made without the applicant having been found guilty of any offence by any court. I further note that CASA cancelled the applicant's authorisation, the AAT affirmed that decision and, therefore, no court cancelled the authorisation.

skinduptruk

15th Dec 2021, 06:07

Dick Smith and I once put together a very professional proposal around NVFR ratings and we never got a reply other than to say that the new director would look at it when he started and nothing but crickets followed.

good summary via Senate Ctte submissions.

THE DESTRUCTION OF THE GENERAL AVIATION AND FLIGHT TRAINING INDUSTRY IN AUSTRALIA - DICK SMITH WAGGA ADDRESS (Dick Smith, 26 Apr 18) (https://www.aph.gov.au/DocumentStore.ashx?id=ae7a996a-4465-4bc6-a3a4-510b9612c3c0&subId=691402)

skinduptruk

15th Dec 2021, 06:32

And here's an AAT decision from June this year in which the AAT affirmed CASA's decision that the applicant was not a fit and proper person: Schott and Civil Aviation Safety Authority (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2021/1855.html#fn67).

thx for that link. id missed that one. apparently he was faking the IFR quals of 32x other pilots and could not justify his actions. ouch. he kept his main flying licence (freedom of movement) tho.

to compare: i was subject to an unlawful ban (to my freedom of movement) which i disputed. SAFA wrote "there is no defence to your actions". CASA ignored that glaring (natural justice aka procedural fairness) issue, then used my dispute in turn as an excuse to ignore their duty re P149 for over 1 year and counting.

anyways, it'll be quite interesting to see how the AAT treats my case.

Lead Balloon

15th Dec 2021, 22:45

What administrative decision do you say has been made that is reviewable by the AAT? Please provide one sentence stating the precise decision that you say CASA has made, one sentence stating the precise provision under the civil aviation rules that you say CASA made that decision and one sentence stating the precise provision of either the civil aviation rules or the AAT Act that gives the AAT jurisdiction to review that decision.

"CASA decided to [e.g. refuse to consider my ... / refuse to grant me...]. CASA made that decision under [e.g. CASR x]. CASR y says that decisions under CASR x are reviewable by the AAT."

If CASA has made a decision reviewable by the AAT in your case, you are entitled to reasons for that decision and CASA would by now have provided you with a thing called a 'section 37 statement' (which is a reference to a section of the AAT Act). Have you been given a 'section 37 statement'? If not, that's a pretty good indication that no decision reviewable by the AAT has been made.

I should stress that I'm on your 'side', in the sense that I despair when I see folks expending so much energy running 'vibe of the thing' arguments and making bush lawyer assertions on PPRuNe as if that advances their interests or bothers CASA in any way. But I'm reminded of the advice of a wise mentor of mine: Leaddie, you can lead a horse to water but you don't have to suck through its *rse to make it drink.

Good luck.

Flaming galah

15th Dec 2021, 23:02

+1 what LB says. The decisions you cite as authority in support of your action just aren’t relevant. Keep it simple.

skinduptruk

16th Dec 2021, 10:01

+1 what LB says. The decisions you cite as authority in support of your action just aren’t relevant. Keep it simple.

Hi FG, and thx LB. i can work on that tmrw. good practice anyways.

in the meantime, in short, imho CASA is ignoring their duty aka misfeasance.

when i did the online AAT application and paid $900, i was asked to do an additional form to clarify the decision etc. perhaps i can try attaching that pdf form here, else i can at least copy the key para.

note the most promising thing was that when the AAT wrote back with the hearing date - it was the AAT who called it: “jurisdiction question”. which i take to mean, does CASA have the jurisdiction to ignore my P149 for no reason… 🧐

skinduptruk

16th Dec 2021, 13:03

30 Aug 21

This form is for use in the AAT’s General Division, Freedom of Information Division, National Disability Insurance Scheme Division, Security Division, Taxation & Commercial Division and Veterans’ Appeals Division.

Subsection 29(7) of the Administrative Appeals Tribunal Act 1975 provides that a person may apply to the AAT to extend the time for making an application for a review of a decision.

SECTION 4 REASONS FOR THE APPLICATION

Outline your reasons for applying for an extension of time to make your application for review of the decision.

In good faith, I mistakenly allowed CASA + CDPP about 4 months to resolve their false claims about this situation. The CDPP has advised me that they are waiting on further information (I presume from CASA). Because the CDPP process may drag on for an unfair amount of time, I seek to review the CASA decision to needlessly wait upon the CDPP decision, before they will review my Part 149 paperwork (which would resolve the situation). CASA also wishes to review whether I am a "fit and proper person" and I anticipate that this review will be highly compromised due to the fact that CASA staff in this matter do not comply with the CASA conflict of interest (COI) policy. CASA have ignored that a paraglider does not meet the definition of an aircraft under CAA 1988. CASA have ignored the unlawful behaviour of the criminal gang known as SAFA, who use vandalism and violence to get their way.

Lead Balloon

16th Dec 2021, 20:19

Hi FG, and thx LB. i can work on that tmrw. good practice anyways.

in the meantime, in short, imho CASA is ignoring their duty aka misfeasance.

when i did the online AAT application and paid $900, i was asked to do an additional form to clarify the decision etc. perhaps i can try attaching that pdf form here, else i can at least copy the key para.

note the most promising thing was that when the AAT wrote back with the hearing date - it was the AAT who called it: “jurisdiction question”. which i take to mean, does CASA have the jurisdiction to ignore my P149 for no reason… 🧐Nah. The ‘jurisdiction question’ is whether the AAT has any jurisdiction. The answer to that question depends on whether CASA has made a reviewable decision. I’ll bet London to a brick that the answer to that question is: No.

You’re way out of your depth.

Better get a lawyer son; better get a real good one.

skinduptruk

16th Dec 2021, 21:15

Nah. The ‘jurisdiction question’ is whether the AAT has any jurisdiction. The answer to that question depends on whether CASA has made a reviewable decision. I’ll bet London to a brick that the answer to that question is: No.

why did the AAT ask to see my P149 paperwork then? ;)

I’ll bet Cairns to a coconut that the answer to that question is: Yes!

PS. you wrote CASA can hold and use any evidence aka dirt file against people at will. yet Repacholi won.

you wrote CASA can do the fit and proper test at will. yet ASQA was shown to overstep some (reasonable) mark.

you wrote CASA can play the “no reviewable decision” card. CASA claimed with FRMS not to affect pilots, only the standards by which they are judged. in fact, CASA did that for me already, claiming that 1 year of their stalling is still not technically a decision to reject the P149 paperwork lol. yet FRMS + Repacholi shows AAT does have jurisdiction over both CASA decisions and their general conduct incl their inane bureaucratic games on the taxpayers’ dollar.

when i figure out how to upload Paul Phelan’s report, it will illuminate the broader context of CASA’s adversarial approach to air safety in Aus. the irony being, safety is not maximised as a result.

Flaming galah

16th Dec 2021, 21:58

Jurisdiction over CASA’s general conduct? No.

skinduptruk

16th Dec 2021, 22:15

Jurisdiction over CASA’s general conduct? No.

pls explain para 95 of Repacholi case law (link above) to me then 🙏🏻

amazing story if you choose to read it in full btw 🤯

Lead Balloon

16th Dec 2021, 23:55

Kurt

You’re carrying on as if Paul Phelan’s and Dick Smith’s analyses and comments are some kind of revelation. It’s all well understood amongst the aviation community, and has been for a long time.

CASA doesn’t care about that stuff. Governments don’t care about that stuff. The AAT doesn’t care about that stuff.

I tried. Flaming Galah has also tried.

Good luck and good bye.

skinduptruk

22nd Dec 2021, 07:23

25 Jun 21

Dear Mr Pudniks

Further to your previous requests seeking recognition as a Part 149 organisation.

On considering the issues further and noting that CASA may only grant an authorisation on the basis that it is not likely have an adverse effect on the safety of air navigation, I am of the view that it is in the best interests of ongoing resource allocation and limiting the potential costs of a formal application that any assessment should first determine your suitability (including whether you are a fit and proper person) to be approved to be issued with a Part 149 ASAO approval.

It is anticipated that this initial assessment of your suitability can be undertaken upon receipt of a Part 149 Application that fulfils the statutory requirements, including regulation 11.030 of the CASR. For the avoidance of doubt, the material supplied by you to this time does not constitute a properly completed formal application.

I also draw to your attention that under regulation 11.055 of the CASR, CASA must take the following matters into account (emphasis added):

(a) the applicant's record of compliance with regulatory requirements (in Australia or elsewhere) relating to aviation safety (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s171.010.html#safety) and other transport safety (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s171.010.html#safety); and

(b) the applicant's demonstrated attitude towards compliance with regulatory requirements (in Australia or elsewhere) relating to aviation safety (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s171.010.html#safety) and other transport safety (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s171.010.html#safety); and

(c) the applicant's experience (if any) in aviation; and

(d) the applicant's knowledge of the regulatory requirements applicable to civil aviation in Australia; and

(e) the applicant's history, if any, of serious behavioural problems; and

(f) any conviction (other than a spent conviction, within the meaning of Part VIIC of the Crimes Act 1914 (http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/) ) of the applicant (in Australia or elsewhere) for a transport safety (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s171.010.html#safety) offence; and

(g) any evidence held by CASA that the applicant has contravened:

(i) the Act or these Regulations; or

(ii) a law of another country relating to aviation safety (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s171.010.html#safety); or

(iii) another law (of Australia or of another country) relating to transport safety (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s171.010.html#safety); and

(h) in the case of an authorisation referred to in subregulation 11.040(2), the applicant's financial standing and financial stability; and

(i) any other matter relating to the fitness of the applicant to hold the authorisation.

As you have been previously informed, CASA has presented a brief of evidence to the Commonwealth Director of Public Prosecutions regarding your reported recent and ongoing alleged non-compliances with regulatory requirements. These matters are also relevant towards both your demonstrated attitude towards compliance with the regulatory requirements as well as any serious behavioural problems. The repeated nature of your alleged conduct has also occurred despite CASA’s best efforts on numerous occasions to ensure that you have an awareness of the regulatory requirements.

It is proposed that by initially conducting an assessment of your suitability (or as a controlling member of an applicant body) to be entrusted with privileges as a Part 149 ASAO, this will avoid a situation where considerable time and resources are expended by all involved.

Given the scope of regulatory responsibilities associated with a Part 149 ASAO approval, a person's fitness and propriety will also be measured against the particular functions and activities to be authorised, and the nature and extent of the wider responsibilities necessarily attendant upon the performance of those functions and activities in the broader interests of safety.

I also draw to attention that irrespective of the above suggested initial approach to the assessment, a final decision as to any Part 149 ASAO approval will need to be deferred until the matters the subject of the brief to the CDPP have been concluded.

If you should have concerns with the above proposed approach to assessment, then please let me know.

Regards

———
Manager Sport Aviation

General, Recreational and Sport Aviation Branch

CASA\Stakeholder Engagement Division

skinduptruk

22nd Dec 2021, 07:33

The AAT doesn’t care about that stuff.
I tried. Flaming Galah has also tried.

FG is yet to reply re para 95 of Repacholi 🙏🏻

I have posted the CASA email to me in question (see above).

In the ASQA case (link above at post #38) the AAT did take an interest in whether the “fit and proper” person test was done fairly.

For CASA to delay processing my P149 on such a weak basis (ie my dispute with SAFA, who CASA allow to operate unlawfully) is tantamount to misfeasance. Change my mind 🤨

Squawk7700

22nd Dec 2021, 07:52

Based on your timeline this far, it appears that you were grounded, but continued to fly anyway.

That on its own is enough to block your application.

What is irrelevant is that you believe that the grounding was not legal / legitimate. Once this element is removed, the fit and proper person issue ceases to exist (assuming the other points are not relevant), although, you have showed that you can’t follow the regulatory framework, because you chose to fly illegally.

The first step is to prove that your licence was removed illegally and the rest will flow from there, although not smoothly.

Let’s just say that Vicroads say that your car is unregistered and you choose to drive and pick up 10 unregistered fines from VicPol.

To fix this problem, you don’t take VicPol to the AAT because someone at Vicroads screwed up.

skinduptruk

22nd Dec 2021, 08:19

17 Apr 20

Kurt,
The only documents that pertain to this are the SAFA Operations Manual and the CASA CAO 95.8

Suffice to say, you appear to be ignorant of various sections of the current Op's Manual.
I suggest you reacquaint yourself with the document. In particular "Pilot Responsibilities"
and the "Privileges and Limitations" section under each certification.

Further to the above, I suggest you also reacquaint yourself with the "SAFA Pilot Code Of Conduct".

Any breach of the Operations Manual by ANY pilot irrespective of club membership, nullifies insurance coverage of the pilot.
The insurer will not respond to any claim where an Operations Manual beach has occurred.

You have failed to establish any grounds for defence to the breach committed and quite simply there is no defence to it.
The manner in which the flight was conducted is irrelevant.
You have breached a directive from the committee of the managing club, a committee of which you were a part and well aware of the determination.

CASA and I will not be entertaining your irrelevant quibbling any further.
Your suspension stands. Any breach of the suspension and CASA will initiate criminal charges.

(COO, SAFA).

skinduptruk

22nd Dec 2021, 08:29

The first step is to prove that your licence was removed illegally and the rest will flow from there, although not smoothly.

To fix this problem, you don’t take VicPol to the AAT because someone at Vicroads screwed up.

a. i have posted SAFA’s clumsy and unprofessional email above re PG licence suspension. the AAT Act 1975 says a person must be given a right of reply. instead, i got “… there is no defence to it”. i also like when SAFA speaks on behalf of CASA, that was cute.

b. i am taking CASA to AAT, not NSW Police.

c. not sure why (you think) the fit and proper person (FPP) test “ceases to exist” tho? perhaps you can explain, here or via pm is fine.

Squawk7700

22nd Dec 2021, 10:24

a. i have posted SAFA’s clumsy and unprofessional email above re PG licence suspension. the AAT Act 1975 says a person must be given a right of reply. instead, i got “… there is no defence to it”. i also like when SAFA speaks on behalf of CASA, that was cute.

b. i am taking CASA to AAT, not NSW Police.

c. not sure why (you think) the fit and proper person (FPP) test “ceases to exist” tho? perhaps you can explain, here or via pm is fine.

From what you’ve pasted in, fit and proper person appears to be one that can work within / follow the regulations. The allegation that you flew after your licence was suspended is your issue because it shows that you broke the rules and flew illegally, even if you truly believe or rightfully know that the suspension was not legal / natural justice applied to the decision. That sounds like your biggest issue.

I can’t see that taking CASA to AAT is relevant because CASA didn’t take away your licence. It feels like you should be working to discredit the other mob first. Right now you’re saying that casa should approve your application because the other mob illegally took away your licence.

Get the licence suspension sorted and the breaches go away, however you’re still left with the fact that you broke the rules by flying so are a risk to aviation safety and considered a cowboy.

Flaming galah

22nd Dec 2021, 21:23

FG is yet to reply re para 95 of Repacholi 🙏🏻

You can lead a horse to water….

LB succinctly and clearly specified what the scope of AAT is in post 4. It ain’t CASA’s conduct champ.

This fundamentally bush lawyer stuff is getting almost to sovcit freeman of the land level of nonsense. You’re really helping SAFA and CASA if you perpetuate this tripe. But, all the best to you and Dennis Dinuto and the Constitution and CASA conduct vibes.

glenb

26th Dec 2021, 05:21

I believe that he is on a short break for some punctuation errors.

I have chatted to him and believe he will be back fairly soon to respond to any questions.

Cheers. Glen

havick

26th Dec 2021, 23:25

I believe that he is on a short break for some punctuation errors.

I have chatted to him and believe he will be back fairly soon to respond to any questions.

Cheers. Glen

Glen, this is probably one you want to distance yourself from for the good of your own case you’re working on. Definitely a lot different dynamics going on with this compared to your situation to which everyone can sympathize.

glenb

28th Dec 2021, 22:22

Cheers Havick, and I very much appreciate the intention and the sentiment of your post, and I do agree with you.

Over the course of the last three years, I have been contacted by many that have been affected by CASAs narcissistic and unsafe culture. Many who have had there lives destroyed or impacted by the Legal, International and Regulatory Affairs Department under the stewardship of CASA Executive Manager, Mr Jonathan Aleck. In my opinion, a very dangerous person whose actions negatively impact on the aviation safety, businesses, and in fact the future of the GA industry. Obviously a lifelong "public servant" with little appreciation of the industry that he rules over.

I have, and will continue to keep my case separate from anyone elses.

My interest and involvement comes from an appreciation of the trauma, stress and anxiety that this man has caused to so many, and the complete "head in the sand approach" that the previous CASA CEO, and potentially the new CEO adopt in order to cover up his misconduct.

In other matters, and including this one, i empathize with the victims. I do also recognize that in this particular case there is a tenuous safety card that Mr Aleck can draw on to manipulate and engineer his desired outcome. In my case, CASA has never put forward any safety case at all, and therefore i appreciate that i must not muddy the waters by becoming too involved, although I am keen to offer any support that I can.

You may be aware that a petition has been commenced to submit to Mr. Barnaby Joyce, and i would actively encourage all industry participants, and most particularly those involved in the GA industry to get on board and sign that petition.

I have called repeatedly for an investigation into the Mr. Alecks misconduct, but he must be covered in Teflon, because nothing sticks to him, and the CASA Senior management is complicit in protecting him, and ensuring that he continues to bring so much harm to so many. Perhaps a Royal Commission is warranted and i would encourage everyone to consider signing the petition referred to in another thread "Royal Commission into CASA".

Thanks for the ongoing support of my matter, and all the best to you for the fast approaching New Year, cheers. Glen

skinduptruk

30th Jan 2022, 12:52

AAT process seems to be frozen for now.

CASA (not the CDPP?!) is prosecuting in matter of R v myself - CAA 1988 - 16x counts of unlicenced operation of an aircraft. Potential fine of $26,640 and/or 2 years jail - all because the non Part 149 PG club (SAFA nee HGFA) unlawfully kicked me out of their club + CASA then ignored my Part 149 paperwork (a whopping 17x pages worth) since Aug 20 🤔

Katoomba local court on Mon 21 Feb 22. I will be representing myself.

I will advise how it goes 🙏🏻

Lead Balloon

31st Jan 2022, 02:35

Jeeez, brave dude.

Interesting the CDPP isn't prosecuting and CASA it. If true, it would suggest to me that the CDPP didn't think it was worth it but CASA reckons you were going to bring down an A380 with your dangerous, extra-club hang gliding.

You'd better hope the magistrate sees through the CASA smoke and mirrors, and you're acquitted or discharged without conviction.

Good luck.

Squawk7700

31st Jan 2022, 06:54

Are you still qualified and current, to be able to fly, as in you’ve done an AFR or similar and posses a medical if required to be able to fly legally, however they have just taken away your piece of paper?

I doubt you would be wanting to bring up the 149 stuff as it does not seem relevant to the charges. If you can find a friend you are allowed to take them along, they might help keep you settled in the courtroom.

skinduptruk

31st Jan 2022, 08:06

CAO 95.8 says PG are exempt from CAA 1988 - so long as you are a member of the HGFA.

The HGFA changed their name to SAFA, their company structure, their constitution, and breached the AATA 1975 to suspend my membership in Mar 20.

I chose to no longer associate with such an unlawful group and submitted my own P149 paperwork instead, around Aug 20.

Which CASA has not reviewed properly ever since, citing their own pending "investigation" in Jun 21 as the reason. Hence I took them to the subject AAT process in Sep 21, result is pending.

CAN was served in Jan 22. We shall see what happens next in Katoomba local court.

Flaming galah

31st Jan 2022, 09:40

The HGFA changed their name to SAFA, their company structure, their constitution, and breached the AATA 1975 to suspend my membership in Mar 20.

Good lord. If the alleged breaches of the AAT Act by an organisation that legislation doesn’t even apply to is one of the planks of your defence, the Magistrate is going to lose patience with your self-represented bush lawyer schlock quick fast.

skinduptruk

31st Jan 2022, 09:57

breaches of the AAT Act by an organisation that legislation doesn’t even apply to...

Thanks for the reply FG.

What makes SAFA immune to the laws of the land?

I also had a conversation with CASA in May 20. CASA said they cannot control SAFA. CASA suggested I apply for Part 149 so I did :)

PS. I wrote to the Minister 5x times since Sep 20. No meaningful progress was made re Part 149 paperwork stonewalling by CASA. Remember the paperwork is 17x pages long, yet it has taken them almost 2 years to still not even *start* their review :o

skinduptruk

31st Jan 2022, 09:59

Court Attendances
Proceedings are listed to appear in court within six weeks of the defence being filed. During the first appearance, the court will give the parties directions designed for a swift determination.
Common directions that the court gives include:
• filing and service of any additional pleadings;
• allocating of a return date for any subpoena (if necessary);
• referral of the parties to mediation or arbitration;
• filing and service of evidence; and
• listing of the matter for trial and pre-trial review.
If a trial date is not set, the matter will be listed for a second appearance, usually 28 days after the first one. At the second appearance, the court will decide whether previous orders have been complied with. If both parties are ready to proceed, a trial date will be set. However, if the parties have failed to comply with previous orders and are not ready to proceed, the court will list the matter for a directions hearing.

https://legalvision.com.au/i-am-a-party-to-local-court-proceedings-in-new-south-wales-what-should-i-expect/

Lead Balloon

31st Jan 2022, 19:17

Prosecutors love your type. You’re stuck on transmit. You’ve made all the necessary admissions and can’t or won’t listen to good advice.

You’d better hope the magistrate understands the triviality of the risks rather than allow you to dig yourself into an even deeper hole.

skinduptruk

1st Feb 2022, 03:52

Yes I will do my best to explain the risks. Perhaps sailing vs powerboats?

Ironically, those same risks happen to be fully documented in my Part 149 paperwork that CASA wont touch! :P

I do listen to advice that references case law or legislation. The rest is just opinion. Which is fine but I wont rely on it.

Lead Balloon

1st Feb 2022, 04:22

The level of risk issue will be a matter for mitigation of penalty or discharge without conviction, either of which means the court has already found the offence/s to have been proved against you. But I realise I haven't cited any legislation or case law in support of that. Dang.

Can you cite the legislation or case law that says the AAT has jurisdiction to review the decisions of a non-government association like HGFA/SAFA? There is none, and it's difficult to cite something that doesn't exist. Dang.

You've got this nailed.

skinduptruk

1st Feb 2022, 07:56

Thanks for the reply LB, sorry if my style is frustrating and/or seems stupid to you.

There was a great comment made in RRAT sub #70 on the SAFA appeals issue.

RRAT Submission #70 (PDF) (https://www.aph.gov.au/DocumentStore.ashx?id=28f11658-de26-4466-83e6-c7416c2d017b&subId=717390)

CASA’s remedy “for members” - Part 149

At the Senate RRAT Estimates hearing 20th October 2020, Dr Aleck for CASA said in response to questions from Senator Patrick said:

“Under Part 149, if a person has one of their authorisations suspended or varied by RAAus they can chal- lenge that. That decision can be referred to CASA, and CASA reviews that decision, and CASA’s decision on that is reviewable in the AAT. Previously RAAus members did not have that option. If they lost their authori- sation as a result of a decision of RAAus, they had no recourse through the tribunals; they would have to go to court and claim unfairness of some sort”

However, in adoption of RAAus’s Part 149 the principle of “justice delayed is justice denied” is realised as a person that is the subject of a suspension or variation of an authorisation will be put through a process that is considerably longer than the process a CASA licenced pilot without the protections afforded in the legislation or CASA’s policies and procedures.

As for the risk issue. I suppose I'm hoping the issue can be seen as: unlawfully suspended for no reason = administrative error = any actions done were essentially while still "licenced". I fear you will laugh at this idea. So be it :)

PS. Whatever does happen, good, bad, or ugly - CASA will seek to use it as a reason to stonewall their review of my Part 149 paperwork!!

Lead Balloon

1st Feb 2022, 08:18

No need to apologise. It's your arse on the line. Any frustration I have is a consequence of people like you and Glen either digging deeper holes for themselves or expending energy on entirely unproductive activities.

I've read all the submissions ever made to any Parliamentary inquiry related to CASA (and its predecessors).

I hope you are able to show the Court that you were "unlawfully suspended". That would require you to cite the legislation and caselaw on which you are relying. The vibe and Mabo won't cut it.

skinduptruk

1st Feb 2022, 08:37

I hope you are able to show the Court that you were "unlawfully suspended". That would require you to cite the legislation and caselaw on which you are relying. The vibe and Mabo won't cut it.

SAFA email record "no defence to it" (https://www.pprune.org/pacific-general-aviation-questions/644137-pudniks-casa-2021-5950-a-3.html#post11159474).

Administrative Appeals Tribunal Act (AATA) 1975 says a person must be informed of their right of reply when given an unfavourable decision.

Seems black and white to me. We shall see!

PS. Thanks for explaining your perspective. I look forward to helping Glen B, Shannon B, and any others in the future, regardless of what happens in my case.

Lead Balloon

1st Feb 2022, 09:01

*sigh*

The AAT Act has nothing to do with decisions of a non-government association like HGFA/SAFA. Of course, you will say that it's outrageous that the aviation 'safety' regulatory system in Australia runs that way. And you'd be right. That's why I said: "Welcome to the party".

skinduptruk

1st Feb 2022, 09:08

a most curious statement by Dr Aleck per above Sub #70 then?! ;)

Lead Balloon

1st Feb 2022, 09:22

Yep. And Dr A has checkmated you.

43Inches

1st Feb 2022, 09:25

skinduptruk

1st Feb 2022, 10:07

18 Jan 22

FOI Documents requested.

I seek access, under the FOI Act, to the following documents:

Hello FOI Team,

As discussed recently, may I make two requests under the FOI Act.

1. PG safety management documents (2017+)

May I seek any documents that capture CASA's ongoing safety management of SAFA within the date range (2017+) i.e. any documentation generated by CASA's work activities relating to the CASA review of PG safety statistics - as captured and reported in summary by SAFA's AIRS system - which may include, but not be limited to:
- Records of (phone and in-person) conversations between CASA and SAFA.
- Any meetings and workshop agendas, terms of reference, minutes, and tabled documents in support of any such meetings and workshops.
- Any reviews and reports including summary reviews and reports.
- Summary details of any surveillance actions by CASA on SAFA.
I agree to the removal of names of CASA staff and third parties, such that the requirement for consultation might be reduced.

2. ATSB-provided data documents (2017+)

May I seek access to notifications of pilot-reported paragliding incidents and accidents provided to CASA from the Australian Transport Safety Bureau (ATSB) within the date range (2017+). The documents within this scope might include a centralised report of data, removing the duplication of data supplied through several sources, to provide me with a resource should I wish to subsequently seek access to documents relating to specific reports. I agree to the removal of names of CASA staff and third parties, such that the requirement for consultation might be reduced.

Date from
2017-01-01

Date to
2022-01-17

Do you agree to the removal of the names of any CASA officers from the documents you are seeking?
Yes

Do you agree to the removal of the names of any third parties from the documents you are seeking?
Yes

Consultation and charges

Consultation with third parties

Where consultation with a third party is necessary, do you agree to the disclosure of your identity for the purposes of third-party consultation?
Yes

skinduptruk

1st Feb 2022, 10:10

Yep. And Dr A has checkmated you.

How so? I think the fact that CASA allows SAFA to operate unlawfully + CASA does not meet their own COI policy is more of a worry for them than me.

I have asked CASA what they do to manage PG safety in Australia broadly speaking. I suspect not much. I have already established CASA does not hold a copy of SAFA's accident log. Pretty alarming...

skinduptruk

1st Feb 2022, 10:17

All I see in #70 is that you have the right to challenge your revocation of your flying permission by SAFA by writing to CASA, if CASA denies, you can then take CASA to AAT for that decision. If however you have flown before any decision is formalised, being aware that you were grounded, you have acted illegally as you are not authorised to fly. Same as if your drivers licence is revoked, you can't drive around while the matter is resolved, unless you are given express permission to do so.

I have taken CASA to AAT re their delay pending their own "investigation" re SAFA's unlawful suspension of me.

SAFA grants certificates not licences. No such thing as a paragliding licence, so it is unlike driving.

I have rights as to freedom of movement. Aus Constitution says - only the courts shall decide the balance of my freedom of movement vs public safety. Not SAFA. Not CASA. We shall see :)

Lead Balloon

1st Feb 2022, 18:24

Yes - your application to the AAT is about CASA's refusal to issue you a Part 149 certificate, not SAFA's 'unlawful suspension'. CASA hasn't made a decision on your application yet, so there is no decision for the AAT to review. You might say that not making a decision is a decision, but the AAT evidently disagrees with you.

Given that you've admitted yourself into a big hole, the chances of CASA granting the certificate to you are pretty remote. So even if you get to the point where your application is considered by CASA to be complete, your application is likely to be refused. That's when the AAT will consider your application for review. (And guess what? The AAT isn't a court. Can you just lift your thumb off the PTT for a moment?)

A law passed by the Parliament of the Commonwealth of Australia says that you commit a criminal offence if you fly your wing without a pilot's licence. However, that law also says CASA may grant exemptions from that requirement, subject to conditions. That's what CAO 95.8 is, along with all the other 95 series of CAOs.

If you comply with the conditions of CAO 95.8, you are exempt from the requirement to have a pilot's licence to fly your wing. If you do not comply with the conditions of CAO 95.8, you are not exempt from the requirement and, accordingly, you breach the law passed by the Parliament of the Commonwealth of Australia if you fly your wing without a pilot's licence. That's why you're fronting one of those "court" things to which you so frequently refer. (You should consider taking your pyjamas and toothbrush along, if you're going to sprout to the court the kind of crap you've sprouted in this thread.)

skinduptruk

1st Feb 2022, 20:26

"if you fly your wing" does not appear in any laws.

btw do you mean the Civil Aviation Act 1988?

Lead Balloon

1st Feb 2022, 23:18

I quoted to you, earlier in this thread, the definition of “aircraft” from the Civil Aviation Act. Read rather than talk or type.

In Australia, it is an offence under the Civil Aviation Act to operate even a model aircraft without a pilot’s licence.

But an exemption from the requirement to hold a pilot’s licence to operate a model aircraft has been issued.

By CASA.

Subject to conditions.

If you operate a model aircraft without complying with those conditions, you are prosecuted for operating an aircraft without a pilot’s licence.

Get it?

If not, it will merely prove once again that people as thick as two short planks can still get a university degree.

Sunfish

2nd Feb 2022, 14:31

Mr. Pudniks, with respect, you do not understand what you are doing. Aviation law is criminal law. If you are convicted, you are a felon, same as an axe murderer. This matter will affect you and any family negatively in ways you cannot yet imagine.

For example you are highly unlikely to be able to get a visa from any country, certainly not USA nor Canada, possibly not even New Zealand, so you won’t be able to travel overseas again. You won’t be able to stand for Parliament. Certain fields of employment will be closed to you. You will not be eligible for an ASIC or MSIC and a wide range of permissions and licenses (for example firearm ownership). You may find yourself on a “no fly” list because your crime involves aviation and your name will be permanently entered on a huge range of undesirable databases including as a potential extremist or terrorist.

It matters not wether you are merely fined one cent or not. I’m not even sure that being discharged without conviction is free of deleterious effect.. In this digital age no one cares about the circumstances or the triviality of the offence. If convicted, you will have committed an aviation related criminal offence, you can argue all you like but no visa or immigration officer will care to listen to your story any more than they listen to convicted axe murderers explaining how they were minding their own business when the axe unfortunately slipped.

As for pursuing hang gliding or a new association, as a felon convicted of an aviation offense, forget it!

Please get high caliber legal advice right now.

You have done one good thing; your forthcoming case emphasizes the lack of fairness equity and natural justice in relation to aviation regulation that in my opinion has held back investment, growth and jobs in the industry for decades.

skinduptruk

6th Feb 2022, 09:09

If you operate a model aircraft without complying with those conditions, you are prosecuted for operating an aircraft without a pilot’s licence.

Post the AustLII case law link to where CASA has prosecuted a model aircraft dude, and I will believe you. In the meantime, read about Repacholi as posted in link above. And Bellamy.

PS. Why should a citizen need an exemption to operate a toy - when the toy is not an aircraft in the first place? :rolleyes:

skinduptruk

6th Feb 2022, 09:12

If you are convicted, you are a felon, same as an axe murderer.

With such a creative imagination, I hope you're an artist! :D

43Inches

6th Feb 2022, 10:33

Post the AustLII case law link to where CASA has prosecuted a model aircraft dude, and I will believe you. In the meantime, read about Repacholi as posted in link above. And Bellamy.

PS. Why should a citizen need an exemption to operate a toy - when the toy is not an aircraft in the first place? https://www.pprune.org/images/smilies2/icon_rolleyes.gif

A model aircraft is considered an aircraft, toy or not.

https://www.casa.gov.au/drones/drone-rules/drone-safety-rules

There's a link to the rules that were referred to above, you may not need a licence but you can still be prosecuted for failing to follow them. Say your toy drone/model aircraft weighs more than 250 grams and you fly it in your backyard 2km from Moorabbin airport you can be prosecuted. You can read the actual regulations in Part 101, the accreditation dispensation is under 101.374b, which allows you to fly 'toy' drones without accreditation.

SAFA grants certificates not licences. No such thing as a paragliding licence, so it is unlike driving.

It does not matter what its called, if you require it that's the issue if you don't have it. Licence, accreditation or certification just means you have been found legally responsible/accountable to hold that status, and more importantly you are aware of your obligations under law. They are different terms for the same thing essentially. Whether you hold any or none does not change your legal obligations. If I drive a car without a licence and cause an accident I'm held to the same laws as a licensed driver as well as being charged for being unlicensed. The law could change and call it a driver certificate, or driver accreditation it would not make any difference, apart from a bureaucrat spending millions of taxpayers cash changing some wording over several years.

Squawk7700

6th Feb 2022, 11:14

With such a creative imagination, I hope you're an artist! :D

He is indeed an artist… a bull-sh1t artist.

Scarily though, for the most part of his post, he is actually correct.

Flaming galah

6th Feb 2022, 20:09

43Inches

6th Feb 2022, 22:42

Post the AustLII case law link to where CASA has prosecuted a model aircraft dude, and I will believe you.

https://pl.com.au/drones-legal-advice-fines/

A number of successful prosecutions vs drone users in that piece. And don't draw lines between drones and model aircraft, they follow the same rules. The difference is between RPA and model aircraft, both being classed as drones. You will find less prosecutions vs model aircraft pilots as they are following the rules and most likely flying in sites designated for it. Where the multicopter drones are being used everywhere for various purposes.

skinduptruk

7th Feb 2022, 00:42

Thanks for the feedback 43, Squawk, FG.

The drone rules seem fair enough. I recall a large drone almost fell on a kayaker at some sports event once upon a time.

I should clarify something. When LB wrote "model aircraft" my mind went to model gliders. Because I see these fairly often at the beach, whereas I rarely see model aircraft with jets or engines etc. I see plenty of drones too of course.

So my next question is: are model gliders aircraft too? If so, what about a paper aeroplane... or a frisbee? Or a boomerang?

(Remember to consult the CAA 1988 definitions for aircraft and flight).

PS. Hey FG yes I'd be happy to post the outcome of the local court hearing + AAT review in due course. I hope it will be a learning experience for all parties involved.

Lead Balloon

7th Feb 2022, 04:11

Here's an idea: Why don't you ask the judge in your case? I'm sure the judge will be more than happy to answer whatever questions you may have.

The judge might even be smart enough to push 'Ctrl' and 'F' at the same time on a computer keyboard, to find the many dozens of instances of the term "model aircraft" in the civil aviation legislation. Then you could have a discussion about whether or not a paper aeroplane or frisbee or boomerang fits the definition.

After all, the judge won't be concerned about whether any of that has any relevance to your case. That's why you could also ask the judge whether s/he agrees that the 'drone rules' are 'fair enough'. That is, after all, what judges do: decide whether or not legislation is "fair enough".

When and where is your court appearance? I'm coming just for the entertainment.

skinduptruk

7th Feb 2022, 06:07

Well so long as LB is entertained, that's the main thing :cool:

I already provided the CAN details above (https://www.pprune.org/pacific-general-aviation-questions/644137-pudniks-casa-2021-5950-a-4.html#post11177354).

I thought local court was held by a Magistrate, not a Judge.

And you didn't answer the question: is a model glider an aircraft under the CAA 1988 definitions?

Stikman

7th Feb 2022, 07:57

is a model glider an aircraft under the CAA 1988 definitions?

I believe it depends on the weight of the model. Under 110 grams doesn't rate.
Between 110 grams and 10kg (guessing here...it's been a while..) is a model aircraft.
Above that, and it's an aircraft needing registration and everything..
....at least, it was last time I checked the regs.
Disclaimer - that was a long time ago, and this *is* CAsA we're talking about..

Squawk7700

7th Feb 2022, 07:58

Maybe LB if you're heading to the court anyway, you can go as his McKenzie friend and help out?

McKenzie friend - Wikipedia (https://en.wikipedia.org/wiki/McKenzie_friend)

Sunfish

7th Feb 2022, 09:49

Mr. Pudniks, I'm going to assume that this whole thread isn't a deliberate and very good hoax and ask one question;

Have you ever been to court before and appeared in front of a Magistrate?

If the answer is "No" and you are very lucky on 21 Feb after you tell the magistrate that you are defending yourself, she MIGHT offer you an adjournment of the matter and a strong (perhaps very, very strong) recommendation that you seek legal advice before you appear before her again. If this option is offered, take it and take it graciously.

You have been warned.

skinduptruk

7th Feb 2022, 09:49

I believe it depends on the weight of the model. Under 110 grams doesn't rate.
Between 110 grams and 10kg (guessing here...it's been a while..) is a model aircraft.
Above that, and it's an aircraft needing registration and everything..
....at least, it was last time I checked the regs.
Disclaimer - that was a long time ago, and this *is* CAsA we're talking about..

Does this help?CIVIL AVIATION SAFETY REGULATIONS 1998 - REG 101.023Meaning of model aircraft (1) A model aircraft (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s202.900.html#model_aircraft) is an aircraft (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s142.035.html#aircraft) (other than a balloon (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s202.900.html#balloon) or a kite) that does not carry a person:
(a) if the aircraft (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s142.035.html#aircraft):
(i) is being operated for the purpose of sport or recreation; and
(ii) has a gross weight of not more than 150 kg; or
(b) if the aircraft (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s142.035.html#aircraft) has a gross weight of not more than 7 kg, and is being operated in connection with the educational, training or research purposes of:
(i) a school in relation to which there is an approved (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s202.900.html#approved) authority under the Australian Education Act 2013 (http://www.austlii.edu.au/au/legis/cth/consol_act/aea2013210/) ; or
(ii) a higher education provider within the meaning of the Higher Education Support Act 2003 (http://www.austlii.edu.au/au/legis/cth/consol_act/hesa2003271/).
(2) However, paragraph (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s13.325.html#paragraph) (1)(b) does not apply (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s202.900.html#apply) in relation to education, training or research conducted (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s61.010.html#conduct) by or on behalf of an entity other than a school or higher education provider mentioned in subparagraph (1)(b)(i) or (ii).
Note: A model aircraft (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s202.900.html#model_aircraft) is not an RPA (see the definition (http://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s13.320.html#definition) of RPA in regulation 101.021). (http://www.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s101.021.html)

skinduptruk

7th Feb 2022, 09:58

Mr. Pudniks, I'm going to assume that this whole thread isn't a deliberate and very good hoax and ask one question:
Have you ever been to court before and appeared in front of a Magistrate?

Not a hoax. Answer is no. But I'd rather give CASA enough rope. I have fried bigger fish than this.

How come no one can answer a simple question about a model glider? Weird...

PS. Fun fact: An ICAO requirement is that CASA must have qualified people with credentials of technical expertise. Do they?

43Inches

7th Feb 2022, 10:21

It's already been answered, an RC glider is a model aircraft/drone, just non powered. The only dispensation from the definition is wire controlled park flyers as described in the regs. Put simply a drone is any remotely controlled flying machine, a model aircraft is a drone used for recreational purposes, a RPA is a drone used for commercial purposes. Method of how it flies is not relevant, ie powered or not, electric vs piston or jet, 50 props or none, helicopter vs fixed wing, it could use anti gravity technology or shoot sunbeams out its ass, it don't matter. If a man made item leaves the earth and moves in the atmosphere in sustained flight, it is now an aircraft and subject to the laws of the country it is flying over. If it is remotely controlled it is a drone, otherwise if piloted you need to follow the normal rules of the air. The rules on whether your drone or piloted vehicle requires a licence, certificate or accreditation or not is contained in the relevant regulations. All aircraft require to be operated by a licensed, accredited or certified operator unless the regulation has a dispensation. Which has been spelled out numerous times in this thread, arguing with a magistrate or judge over semantics will just get them frustrated and angry and make your situation worse pushing your penalty towards the upper limits rather than minimal.

Sunfish

7th Feb 2022, 11:29

Not a hoax. Answer is no. But I'd rather give CASA enough rope. I have fried bigger fish than this.

Mr. Pudnicks, if I were you, I would find the nearest Federal (?) Magistrates court that is sitting tomorrow and go and sit in the back row for the day and watch what goes on. Repeat for several days. Unless you are either very smart or very stupid, that should convince you of your need for legal advice and counsel.

You do realise, by the way, that the contents of this thread may be used as evidence against you?

With the greatest respect, CASA is not on trial; You are. The Magistrate will no doubt remind you of this. If you fail to listen......bring your tooth brush.

Lead Balloon

7th Feb 2022, 22:23

Don't worry, Sunfish. Mr Pudniks has this nailed.

Earlier in this thread (at #69) he quoted the court attendance procedures for NSW. Admittedly the proceedings he quoted are for civil proceedings, but hey - what the heck - civil? criminal? - it's all the same and he's given CASA enough rope. (I imagine CASA has made a lovely macramé wall feature with it by now.)

skinduptruk

8th Feb 2022, 06:53

Method of how it flies is not relevant, ie powered or not, electric vs piston or jet, 50 props or none, helicopter vs fixed wing, it could use anti gravity technology or shoot sunbeams out its ass, it don't matter. If a man made item leaves the earth and moves in the atmosphere in sustained flight, it is now an aircraft and subject to the laws of the country it is flying over.

At last we are getting to the technical point that interests me the most!

You mentioned a few things that are interesting.

1. Powered or not.
2. Anti-gravity or photon-drive (looks like we both enjoy Star Trek).

Question #1 - "flight" is when "the aircraft moves under its own power". So tell me how exactly can an unpowered craft ever undertake a "flight"?

Question #2 - "aircraft" is "a craft that derives support from reactions* of the air". So why would such alternative methods of lift make it an "aircraft" exactly?

*Reaction requires there to be an Action (force over distance) enacted on the air. Gliders tend to fall under gravity only; there is no thrust! :8

I am quoting the definitions from the CAA 1988 of course ;)

skinduptruk

8th Feb 2022, 07:00

Mr. Pudniks, if I were you, I would find the nearest Federal (?) Magistrates court that is sitting tomorrow and go and sit in the back row for the day and watch what goes on.

I believe Federal courts are held by Judges.

I have been asked to attend a local court hearing held by a Magistrate. Judge and Jury might cost extra.

I read the Angel Flight transcript (92pp or so) which gave me an idea of the banter. Some good quotes in there actually, like "legislation by puzzle-making" and "the Australian empirical lack". Alas Mr Walker did not win the day for Angel Flight.

skinduptruk

8th Feb 2022, 07:07

Earlier in this thread (at #69)

Hey LB, a quick note, that you can use the "permalink" at top right to link to a specific post. It's quite handy to jump when referring to a specific post.

PS. Please consider my "statutory interpretation" above re aircraft and flight.

Question: does CASA have legislated authority to do such? Or does the Aus Constitution say only the courts shall decide how to apply the Laws of the Land? Honest question. Thanks for your sustained interest in my case.

Sunfish

8th Feb 2022, 09:59

I believe Federal courts are held by Judges.

I have been asked to attend a local court hearing held by a Magistrate. Judge and Jury might cost extra.

I read the Angel Flight transcript (92pp or so) which gave me an idea of the banter. Some good quotes in there actually, like "legislation by puzzle-making" and "the Australian empirical lack". Alas Mr Walker did not win the day for Angel Flight.

I don't know the details, but years ago, a Magistrate sits alone and decides cases as she sees fit based on the evidence presented on the day. They have the power to incarcerate for a period of a few years and levy fines up to a few tens of thousands.

Beyond that you will be in front of a judge possibly a jury and the stakes are much higher. The banter you refer to are senior barristers arguing their case.

My hazy memory and recollections of a relative who was a magistrate whose court I attended out of curiosity suggest that there is no time for "banter" in a Magistrates Court, quite the opposite. I am at a loss to understand how you might escape conviction given your alleged admission of the facts and intention represent yourself.

If you are very lucky you might strike a "caring and sharing" Magistrate who may help you avoid a conviction on the spot. You might also be unlucky and get a grumpy old Bloke who cuts you off when you say "Yes your honor but I can explain.....". convicts you and moves on to the next case in a few minutes.

Please get legal advice.

43Inches

8th Feb 2022, 10:35

Question #1 - "flight" is when "the aircraft moves under its own power". So tell me how exactly can an unpowered craft ever undertake a "flight"?

That looks more like you are quoting the rules for logging of flight time, not the definition of flight in itself. Law does not have to define something that is general knowledge, ie everyone knows that flight is the act of flying, applied to any object. You will not be able to twist any legal fraternity on what is flight, any 'thing' can be launched or power itself into flight. A bird, insect or thrown rock can take flight. If you are quoting the flight time definition it quite clearly states for the purpose of that section.

Question #2 - "aircraft" is "a craft that derives support from reactions* of the air". So why would such alternative methods of lift make it an "aircraft" exactly?

Fair enough I was exaggeration on the sci-fi stuff, however that does not change what we are talking about in this. A hang-glider uses air to stay aloft, so it is an aircraft. Same with model aircraft. Unless your vehicles have cracked physics problems and are powered by antigrav then you are buggered. Then possibly another set of rules will be 'created', as for now it is what it is.

Lead Balloon

8th Feb 2022, 22:06

Mr Pudniks

If you wish to argue that a glider is not an "aircraft" within the meaning of that word in the Civil Aviation Act, knock yourself out. I'll bring a bigger bag of popcorn.

From my perspective, a glider is the paradigm example of a machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface. That's why good glider pilots can fly a 1,000km triangle. The main constraint on great glider pilots is not so much gravity, but more the number of hours of daylight.

It's about 'Aerodynamics 101' and a thing called a 'wing'. You've heard of 'wings'. It's one of those things that you've said you fly.

A Cessna 172 and a Piper Cherokee and any other aeroplane you'd like to name is just a glider with one or more engines. Google "the Gimli glider".

You quote the definition of "model aircraft" from CASRs, and still can't work out whether a model glider is an "aircraft" for the purposes of the civil aviation rules? Seriously?

Your problem is not so much that you're a smartarse; It's more that you're a smartarse who isn't smart enough to know when to shut his mouth. That's why I said that prosecutors love defendants like you. In contrast but for the same reason, I'd hazard a guess and say that HGFA/SAFA won't be missing you much.

Chances are that all that will happen on the 21st is your plea will be taken and, if you plead not guilty or do not enter a plea, a date will be set for the hearing. Chances are you won't be remanded in custody or even on bail, but your mouth could affect those probabilities.

Good luck.

skinduptruk

9th Feb 2022, 02:38

My kitesurfer derives support from *actions* of the air. When I go kitesurfing, is that flying an aircraft? (By the definitions of CA Act 1988).

The Macquarie dictionary has two different listings for "action" and "reaction". Sir Isaac also has something to say about this some 356 years ago. Seems like we all need to brush up on some history.

Trust the science.

PS. Thanks for the heads up re plea + hearing. I tend to agree.

43Inches

9th Feb 2022, 20:16

Kites and Wire controlled model aircraft are excluded from the rules, you just need to read the regulations its all there. And no, a hang glider can not be considered a kite, as it's not controlled by a tether to the ground. The only rules for kites are no more than 400ft high or within 3 nm of an airport, and not to create a public nuisance. You would probably be charged under danger to air navigation were you to impact your kite into any low flying aircraft.

skinduptruk

10th Feb 2022, 00:20

Confessions of a kitesurfer (is this an aircraft too?) :confused:

https://cimg5.ibsrv.net/gimg/pprune.org-vbulletin/1420x2000/8bb2a6da_51b6_4853_90a2_863b3d8d8405_cdb3817e600cc918312395b baa483c1f937cca97.jpeg
taxiing
https://cimg4.ibsrv.net/gimg/pprune.org-vbulletin/1566x1118/1417abcc_f6c6_45dd_8e25_a88d8ecb2b7a_205ec136d0925e954a4a6b3 488f68031b4be8729.jpeg
take-off
https://cimg7.ibsrv.net/gimg/pprune.org-vbulletin/1420x2000/b54299a6_9f26_47e7_9776_72ee6d5c1e43_85e1b06c9020f86a000a5c4 5c5426895b34824a1.jpeg
flight

skinduptruk

10th Feb 2022, 00:24

Kites and Wire controlled model aircraft are excluded from the rules

Doesn't it say something about kites that do not carry a pilot? I'm thinking about the model aircraft section though.

In any case, it will be a landmark case of statutory interpretation imho.

And LB will be entertained, which is the main thing :cool:

Flaming galah

10th Feb 2022, 02:35

In any case, it will be a landmark case of statutory interpretation imho.

While you might humbly suggest your upcoming appearance will be a watershed moment in the evolution of Australian aviation law jurisprudence, the heirachy of Courts being what it is means that even if (they won’t) your interpretations are preferred, it’s not gonna be landmark champ. That’s the domain of the HCA.

skinduptruk

10th Feb 2022, 06:01

Thanks Incendiary Eolophus Roseicapilla,

I am assuming the defendant has a right to reasonably define (Macquarie dictionary) and understand (can qualified people with credentials of technical expertise aka Scientists be a burden unto themselves?) the charges against them. If so, I win, imho.

PS. I see a Senate Standing ctte on RRAT - Aus' GA Industry - new Sub #72 just went up here (https://www.aph.gov.au/DocumentStore.ashx?id=ebd13b6f-725e-4092-9b37-ce8482bb3abd&subId=719587) :8

Lead Balloon

10th Feb 2022, 06:06

Mr Pudniks

You may be interested in looking at the Victorian Supreme Court of Appeal decision in Mount Beauty Gliding Club Inc & Anor v Jacob [2004] VSCA 151 and, in particular:

- the finding that a glider is an aircraft for the purposes of the legislation relevant to that matter (carriers’ liability), but also…

- the reference in para 31 to the English Court of Appeal decision in Disley v Levine which held that a paraglider is not an “aircraft” for the purposes of the legislation under consideration in that case (also carriers’ liability).

But note footnote 33, at which Callaway JA makes clear that nothing in his decision and his reference to the English Court of Appeal decision in Disley v Levine is intended to express a view about paragliders.

Also have a look at para 90 of Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169.

Also have a look at Wardle v Kick and Ors [2006] NSWSC 327 in which the NSW Supreme Court just ‘took it as read’ that hang gliders and paragliders are subject to the regulatory regime provided under the Commonwealth Civil Aviation Act 1988 (though on the facts the case was about hang gliders).

(I know you're an expert at the 'Austlii' thing, so I'll leave you to find the judgments if you're interested.)

Flaming galah

10th Feb 2022, 07:40

Thanks Incendiary Eolophus Roseicapilla,

I like it! While I still think you’re barking not just up the wrong tree but in the wrong forest on the wrong continent, I do hope it goes well and you prove us all wrong.

Flaming galah

10th Feb 2022, 07:45

Also have a look at Wardle v Kick and Ors [2006] NSWSC 327 in which the NSW Supreme Court just ‘took it as read’ that hang gliders and paragliders are subject to the regulatory regime provided under the Commonwealth Civil Aviation Act 1988 (though on the facts the case was about hang gliders).

Even if obiter, sounds awfully like a precedent a NSW Magistrate is bound to follow given it’s from a higher court.

skinduptruk

10th Feb 2022, 08:11

In Disley v. Levine the claimant was injured in a paraglider accident. A paraglider consists of a canopy which is inflated by the wind to form an aerodynamic wing from which the pilot is suspended by a harness equipped with control lines. It usually carries only one person, but this was a tandem paraglider in which the claimant was under instruction from the defendant for her elementary pilot certificate. The English Court of Appeal held that the paraglider was not an aircraft for the purposes of Schedule 1 to the Air Navigation (No. 2) Order 1995, which was based on the Warsaw Convention as amended by the Hague Protocol and which would have had the effect either of barring the claim altogether or of limiting the amount of damages that could be recovered. That decision is distinguishable in at least three respects. First, it is a case about paragliders.

Para 31 from Mt Beauty case law (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2004/151.html#para31)

skinduptruk

10th Feb 2022, 08:30

5. The Hang Gliding Federation of Australia maintains an Operations Manual. That manual provides standards and rules for operations, pilot certification and for pilot training. The aim of the manual is to ensure that hang gliding operations are carried out in accordance with the requirements of the Civil Aviation Act (https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/caa1988154/) and the relevant Regulations and orders.

Wardle v Kick and Ors (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2006/327.html)

The SAFA nee HGFA Ops Manual does not achieve that aim - by definition! In fact CAO 95.8 says HG + PG are exempt from the CA Act 1988, so why, or how, could the Ops Manual do any such thing.

The last time I looked, the Ops Manual did not define "site" which gives you an idea of how thorough it is. It also defines PG3 and above are "unsupervised" which goes against something CASA wrote in their "statement of facts" for my case, that PG pilots are "supervised" by SAFA safety officers. This is incorrect and absurd even in theory, let alone practice. What it does show is how out of touch with real PG activities at real-world PG sites CASA are, for stating such a thing.

As you wrote LB, they seem to "take it as read" about the aircraft definition. There is no debate about that, in this case. Also note there was an actual safety incident. My case is purely about "operation of an aircraft in flight" with no actual event of unsafe air navigation. I believe this is CASA acting out their most absurd prosecution to date. It appears even the CDPP did not want to prosecute it themselves which is quite odd imho.

PS. Very interesting ruling about the English case, that PG is not an aircraft. Might be worth a passing mention, although I do understand that the overseas jurisdiction is not super relevant to us here. Better to have such a ruling than not though right!

skinduptruk

10th Feb 2022, 08:42

Even if obiter, sounds awfully like a precedent a NSW Magistrate is bound to follow given it’s from a higher court.

It was never tested. Different craft. Different context (no injury).

Curiously, over the phone (back when CASA legal were brave enough to engage with me in conversation), CASA suggested that a HG has been found as an aircraft by the NZ High Court. However, the high school physics point about action and *reaction* was never tested.

My reply at the time was "Wrong behaviour (deliberate dive-bombing)! Wrong country!! Wrong craft!!!"

CASA legal stopped engaging with me after that. They appear to dislike a fair fight...

It is not disputed by the applicant that a hang glider can derive support in the atmosphere from the reactions of the air. It is also not in dispute that it does so otherwise than by the reactions of the air against the surface of the earth. The sole question then is whether a hang glider is a “machine”. Counsel for the appellant submits that it is not a machine because it contains no moving part and is controlled by the controller’s body; that it is used by a human to perform an activity but is entirely passive in that the human controls the flight by shifting body position. The respondents submit that a hang glider is an aircraft.

Smith v Attorney-General HC Wellington CIV 2007-485-2566 [2008] NZHC (https://www.austlii.edu.au/cgi-bin/viewdoc/nz/cases/NZHC/2008/1744.html)

skinduptruk

10th Feb 2022, 08:46

I like it! While I still think you’re barking not just up the wrong tree but in the wrong forest on the wrong continent, I do hope it goes well and you prove us all wrong.

A separate post to say thank you to you both LB and FG (and others). The debate is most welcome, the links this eve are especially helpful! It can only help at this late stage!! :ok:

Capt Fathom

10th Feb 2022, 08:58

I find it hard to understand why someone who is about to go to court has so much to say in a public forum.

skinduptruk

10th Feb 2022, 09:03

I find it hard to understand why someone who is about to go to court has so much to say in a public forum.

Have patience awhile; slanders are not long-lived. Truth is the child of time; erelong she shall appear to vindicate thee.
- Immanuel Kant

vne165

10th Feb 2022, 11:57

Wardle v Kick and Ors....
Priceless. Best thread on PP atm...:D

Lead Balloon

10th Feb 2022, 19:27

Even if obiter, sounds awfully like a precedent a NSW Magistrate is bound to follow given it’s from a higher court.I think Mr Pudniks has snowflake’s of convincing an Australian court that a para glider is not an “aircraft” within the meaning of that term in the Civil Aviation Act 1988. But that’s obviously a matter for the court.

Squawk7700

10th Feb 2022, 20:10

If they are not an aircraft, why did you submit the application to become a governing body for something that is not covered by the regulations?

skinduptruk

14th Feb 2022, 04:33

I think Mr Pudniks has snowflake’s of convincing an Australian court that a para glider is not an “aircraft” within the meaning of that term in the Civil Aviation Act 1988. But that’s obviously a matter for the court.

I know what you mean LB. I do hear you. However, if a PG is an aircraft by that definition, then so is every other physical object that moves through the air at its own unique glide ratio (note the definition does not mention "carry a person at altitude" etc). Such aircraft might include a kitesurfer, frisbee, boomerang, paper airplane, even a rock as someone mentioned above! :o Every object known to man in fact.

Rather, I will contend that the authors' intent was to only include powered aircraft. This matches with flight being "under its own power". We shall see.

skinduptruk

14th Feb 2022, 04:40

If they are not an aircraft, why did you submit the application to become a governing body for something that is not covered by the regulations?

Good question, I can see you're a chess player thinking a few moves ahead. I too did think about this.

Even though a PG is not an aircraft, it can certainly get in the way of aircraft!

Hence Part 149 means you understand the CA Act 1988 and all aspects of "safety of air navigation" aka good airmanship (air-person-ship?). Things like staying out of controlled airspace for a start. Carriage and use of VHF radio such that if you happen to be near CTAF you can interact as required. And every other aspect of *interacting* with aircraft - even though one may or may not be an aircraft oneself! :cool:

PS. Part 149 also asks for a safety management system (SMS) which I was able to draft in a weekend because I have 15 years of work experience in the field of risk management. But CASA doesn't care to read it! Which neatly circles back to the title of this thread, the AAT case to ask CASA to review my Part 149 paperwork in good faith :*

Lead Balloon

14th Feb 2022, 04:58

I know what you mean LB. I do hear you. However, if a PG is an aircraft by that definition, then so is every other physical object that moves through the air at its own unique glide ratio (note the definition does not mention "carry a person at altitude" etc). Such aircraft might include a kitesurfer, frisbee, paper airplane, even a rock as someone mentioned above! :o Every object known to man in fact.

Rather, I will contend that the authors' intent was to only include powered aircraft. This matches with flight being "under its own power". We shall see.
I don't think a "rock" is either a "machine" or "craft" in terms of the definition (which definition in Australia is, BTW, different to the one in the NZ CAA Act). Words have meanings.

The difficulty I see in your logic is that it does not result in you being exonerated. "Yes Mr Pudniks, it may well be that every object known to mankind fits the definition, in which case your PG fits the definition. We are dealing only with the charges against you. We will deal with the paper airplane throwers if and when they are charged."

As someone pointed out earlier, just about the only work done by the definition of "flight" in the regulations is the calculation of flight time for pilot logbooks. That's because flight time in a pilot's logbook includes - in the case of heavier-than-air aircraft - some time when the aircraft in question is not flying in fact. For example, heavy metal pilots will usually log 'chock to chock' time. (And, in any event, you didn't read paragraph (b) of the definition which does not mention power and, therefore, was drafted on the basis that a subset aircraft can be in "flight" without being powered.)

skinduptruk

14th Feb 2022, 05:56

I don't think a "rock" is either a "machine" or "craft" in terms of the definition (which definition in Australia is, BTW, different to the one in the NZ CAA Act). Words have meanings.

The difficulty I see in your logic is that it does not result in you being exonerated. "Yes Mr Pudniks, it may well be that every object known to mankind fits the definition, in which case your PG fits the definition. We are dealing only with the charges against you. We will deal with the paper airplane throwers if and when they are charged."

As someone pointed out earlier, just about the only work done by the definition of "flight" in the regulations is the calculation of flight time for pilot logbooks. That's because flight time in a pilot's logbook includes - in the case of heavier-than-air aircraft - some time when the aircraft in question is not flying in fact. For example, heavy metal pilots will usually log 'chock to chock' time. (And, in any event, you didn't read paragraph (b) of the definition which does not mention power and, therefore, was drafted on the basis that a subset aircraft can be in "flight" without being powered.)

The charges mention "performed a duty essential to the operation of an Aus aircraft during flight time". So in trying to be fancy, they introduced the problem of "under its own power". For a PG, where is the thrust? Where is the power plant?

The point of my "every object" argument is that is clearly not what the authors meant. They meant aircraft that placed "an action" on the air - hence derive support from "reactions" of the air. So the statutory interpretation ought to consider that. How can we make every (un-powered and powered) object that moves through the air illegal - then allow CASA to pick and choose who to prosecute on a day to day basis. That is absurd. If kitesurfers are aircraft too, then CASA suddenly has a misfeasance problem for not prosecuting them!

For me the kitesurfer vs paraglider is a good example. How can both fit the definition? Yet only one is "an aircraft". This inconsistency is the vital issue of statutory interpretation. It also has an easy visual appeal to be debated. These two craft are identical in terms of the principle of operation, which is handy.

PS. A quick reminder, that my PG licence / certificate was unlawfully suspended by the club SAFA, which holds an unconstitutional monopoly over my freedom of movement. Oh well.

Lead Balloon

14th Feb 2022, 06:10

Squawk7700

14th Feb 2022, 08:24

Sunfish

14th Feb 2022, 08:31

I admire Mr. Pudnicks spirit. Is it possible to have a friendly wager on the outcome?

skinduptruk

14th Feb 2022, 08:37

I admire Mr. Pudnicks spirit. Is it possible to have a friendly wager on the outcome?

If I had any bitcoin, I'd be "all in" with that offer ;)

skinduptruk

14th Feb 2022, 08:40

If this particular argument about the PG versus kite surfer came to light, common sense would say that a kite surfer is not a threat to the safe operation of another aircraft as it primarily spends it's time on the water. A PG or HG for that matter, can be launched and flown freely from the side of a cliff at high altitudes and may present as a risk to "real" aircraft if not flown safely.

I tend to agree. However, the risk posed to aircraft does not necessarily make oneself "an aircraft". For example a silly teenager with a high power laser on final approach (a common news item).

skinduptruk

14th Feb 2022, 08:43

https://cimg9.ibsrv.net/gimg/pprune.org-vbulletin/1280x959/img_3161_89663bd81c73caf3286705060c2043e47202063b.jpg
ASRR sub #172
https://cimg3.ibsrv.net/gimg/pprune.org-vbulletin/1280x959/img_3162_08b527ffb753a1fdb6d5da108607fd832559e00a.jpg
ASRR sub #185
https://cimg0.ibsrv.net/gimg/pprune.org-vbulletin/1280x959/img_3163_492cbfa174ba2d26a1ca30e4fe52a1d4861dcd0e.jpg
ASRR sub #185
https://cimg6.ibsrv.net/gimg/pprune.org-vbulletin/1280x959/img_3164_4532dd894773cc5889a5d5b918bb5c96fec93235.jpg
ASRR sub #187 from APF

skinduptruk

14th Feb 2022, 08:47

A side point re Part 149.

As posted above, the APF are handed contracts to "agree with" after the fact (seems invalid under Contracts Law?).

Noting it was a 2014 sub, it becomes an interesting fact pattern ahead of the court case for the sad ABC news item here (https://www.abc.net.au/news/2021-09-09/husband-sues-over-wifes-queensland-skydiving-death/100447064).

skinduptruk

14th Feb 2022, 08:57

*sigh*

You should read the section for breach of which you've been charged. There is one definition for the purposes of that section: "flight time". You should read that too, so that you can then find out what the tern "flight time" actually means in the section for breach of which you've actually been charged.

Not every object is a "machine" or "craft". The drafters of the definition have already limited the scope of the definition so as to exclude, for example, rocks.

How do you know a kitesurfer isn't an aircraft as defined? Are you able to cite authority for that? The fact that CASA doesn't (so far as I am aware) treat kitesurfers as aircraft does not make it so. It may be that they are just kites, dealt with by the kite provisions of the regulations. The clue may be in the name.

My point is that of course a KS is not an aircraft. Yet it is identical in its principle of operation to a PG. Hence a PG is not an aircraft either. This is just an example, the statutory interpretation remains with the key difference between "action" vs "reaction" imho.

Sorry, I kept cropping the text in an effort to be concise, but that is causing issues I see. Here it is in full.

https://cimg5.ibsrv.net/gimg/pprune.org-vbulletin/1430x437/img_2711_a6ccdfab2d15d2e208257d6dcee6ca820dbd9030.jpg
PG charge.