A new concept: air transport operations that are not air transport operations

[Clinton McKenzie]

For a range of reasons, I now have little choice but occasionally to try to make sense of the complex, convoluted Heath Robinson contraption that CASA continues to devise, while the regulatory ‘reform’ program drifts on forever. Up until recently, I’ve been lucky enough to be generally able to avoid having to lift the lid on the mess. (A while ago I had no choice but to look at Part 175 – a world-leading example of bureaucratic overreach which treats every aerodrome and HLS as if its YSSY, EGLL KLAX or KJFK – and CASR Part 138 and its MOS – strong contenders as the worst in a field of regulatory dross.)

Sadly – but unsurprisingly, given my reasons for ceasing decades ago to listen to the lies told by CASA about regulatory ‘reform’ – the mess disguises some silly, sly and incomprehensible outcomes. You can look at the detail of what I’ve written to CASA, copied in the next post, if you want the tedious detail of the latest discovery I’ve made. In case that might result in you losing the will to live, here’s the summary.

The Summary

Although your flight may not be an air transport operation, it could still be an Australian air transport operation.

Down the rabbit hole to Wonderland…

There’s a definition of ‘air transport operation’ in the CASR Dictionary. You’d think that if your operation did not fall within that definition, your operation could never be any kind of ‘air transport operation’ for the purposes of CASR. That would be a logical and reasonable conclusion. But you’d be wrong.

CASR 119.010(1)(e) purports to give CASA power to prescribe, in the Part 119 MOS, any operation of any aeroplane or rotorcraft, with the outcome being that the operation becomes an ‘Australian air transport operation’ even if the operation is not an ‘air transport operation’ as defined in the CASR Dictionary (and, get this: even if the aircraft or its operator or its location have no connection with Australia).

For example, flights that are ‘cost-sharing’ flights as defined in the CASR Dictionary are excluded from the definition of ‘passenger transport operation’ in the CASR Dictionary and, in turn, outside the scope of the definition of ‘air transport operation’ in the CASR Dictionary. So you’d think that your ‘cost-sharing’ flight couldn’t possibly be an ‘Australian air transport operation’ for the purposes of the regulations, thus requiring at least an AOC. But…

If there’s a sentence buried in the Part 119 MOS prescribing ‘cost-sharing’ flights as operations for the purposes of CASR 119.010(1)(e), the result is that ‘cost-sharing’ flights become an ‘Australian air transport operation’ even though they are not an ‘air transport operation’. Do not try to make sense of that. It will break your brain.

As a private pilot you would of course think to check the content of the Part 119 MOS to find out whether Part 119 applies to your flight, wouldn’t you? You of course understand that even though the prescription of operations in a MOS made under a Part of CASR, to which operations that Part will purportedly apply as the consequence of that prescription, is neither a standard nor a technical requirement, it would still be prudent for you to look in a MOS to find out whether a Part of CASR applies to your flight.

Why this stuff happens

This is a typical product of complicators who simply cannot conceive of regulatory regimes that define the goal posts, the size of the playing field and rules of the game and leave it at that, so that those who want to play the game have certainty for the future and can plan and practise accordingly. These complicators cannot resist including mechanisms to allow them to fiddle with the goal posts, the size of the playing field and the rules of the game on the basis of their strongly-held opinions from time to time, via the easiest way practicable. (Some of these mechanisms also provide scope for opaque favouritism, conferral of commercial advantages and increased risks to safety – the mechanism for approval of what are given the Orwellian description ‘minor variations’ in the fatigue rules is an example. Of course everyone, including the travelling public, knows the details of all approvals CASA has granted for ‘minor variations’ from the fatigue rules, don’t we?)

This is what happens when a regulator is left to run the process which produces the rules which determine so much of the detail of the regulator’s own role and powers in the rules. CASA: QED.

These mechanisms are almost invariably the last item on a list of provisions which, but for that item, provides clarity and certainty on the face of the rules. I’ve been there: Some ‘technical experts’ look at a draft rule, which provides objective certainty on its face, and say they should still be able to get around all of that and make up what they want when they feel like fiddling with it. After all: they have been put in a position of authority and, therefore, their strongly-held opinions must be better than everyone else’s. (CASA Avmed are ‘thought leaders’ on this attitude.)

Have a look at CASR 119.010(1) to see what I mean. But for para (e), everyone would be able to tell, on the face of CASR 119.010(1) itself, that if your operation is not an ‘air transport operation’ in the first place, it can never be an ‘Australian air transport operation’. And that makes intuitive sense. Rules that make intuitive sense on their face are much, much better than ones that don’t.

But because of para (e), an ‘Australian air transport operation’ can include any aeroplane or rotorcraft operation that CASA plucks out of its nether regions and plonks into the Part 119 MOS when CASA feels like it. That which you thought was black can actually be white.

This is not safety through simplicity. This is confusion through convoluted complexity.

There’ll be a bunch of dissembling sophistry around consultation and potential disallowance of proposed MOS provisions that do this, but we know how that works in reality and the: “These are made by the Governor-General, not CASA” smoke and mirrors trick does not work for a MOS. The provision goes in – it’s about the safety of air navigation, dontcha know – and the damage is done unless there’s sufficient energy to lobby then political nous and courage to get the provision disallowed. If there is really a burning safety imperative for some operation to be covered by Part 119, then amend Part 119 or the CASR Dictionary definitions so that it is clear, on the face of CASR, that the operations are covered. You’d think, though, an amendment should be unnecessary after a couple of decades developing this regulatory masterpiece.

[Clinton McKenzie]

The Tedious Detail

I wrote to CASA’s ‘Regulatory Guidance Centre’ in the following terms today:

Background

CASR 119.010 is headed Definition of Australian air transport operation. Subregulation (1) says:

(1) An operation is an Australian air transport operation if the operation is any of the following:

(a) an air transport operation conducted by an Australian operator using a registered aeroplane or rotorcraft;

(b) an air transport operation:

(i) that is a flight into or out of Australian territory or an operation in Australian territory; and

(ii) that is conducted by an Australian operator using an aeroplane or rotorcraft that is a foreign registered aircraft;

(c) an air transport operation:

(i) that is conducted by an Australian operator using an aeroplane or rotorcraft; and

(ii) that is provided for under the ANZA mutual recognition agreements;

(d) an air transport operation conducted by a foreign operator:

(i) using an aeroplane or rotorcraft that is a foreign registered aircraft; and

(ii) undertaken wholly within Australia; and

(iii) not undertaken as part of a flight into or out of Australian territory;

(e) an operation, conducted using an aeroplane or rotorcraft, of a kind prescribed by the Part 119 Manual of Standards for the purposes of this paragraph.

I note that each of paragraphs (a), (b), (c) and (d) commences with “an air transport operation”. The term “air transport operation” is defined in Part 2 of the CASR Dictionary. Accordingly, it seems to me that an operation cannot fall within the scope of any of those paragraphs unless the operation is at least an “air transport operation” as defined in Part 2 of the CASR Dictionary.

In contrast, paragraph (e) commences with “an operation”. Therefore, it seems to me that on its face in isolation, paragraph (e) purports to authorise the prescription, in the Part 119 MOS, of any operation conducted using an aeroplane or rotorcraft, even if the operation does not fall within the scope of the CASR definition of “air transport operation”, such that the operation becomes an “Australian air transport operation”.

(Even further, all paragraphs other than (e) include criteria relating to the nationality or geographical location of the aeroplane or rotorcraft, or its operator, engaged in the air transport operation. Those criteria seem to me to go to the “Australian” element of “Australian air transport operation”. Therefore, on its face in isolation, paragraph (e) seems to me to purportedly authorise the prescription, in the Part 119 MOS, of any operation conducted using an aeroplane or rotorcraft, even if the aeroplane or rotorcraft is neither Australian nor operated by an Australian operator nor operated wholly within Australia, with the outcome being that the operation becomes an “Australian air transport operation”.)

In short, CASR 119.010(1)(e) seems to me on its face to authorise CASA to turn any operation of any aeroplane or rotorcraft into an “Australian air transport operation” even if it is not an air transport operation as defined in CASR (and even if it has no connection with Australia). CASA appears to be able to do that by putting a sentence into the Part 119 MOS.

The outcome is that “black” can mean “white”.

Questions

Question 1: In CASA’s opinion, does CASR 119.010(1)(e) authorise the prescription, in the Part 119 MOS, of an operation which is not an “air transport operation” as defined in the CASR Dictionary, such that the operation becomes an “Australian air transport operation” subject to Part 119 and, potentially, Part 121? For simplicity, assume the operation is one using an Australian registered aeroplane. Please note: This is a closed question.

Question 2: If the answer to Question 1 is yes, does CASA consider that it has power in principle to, for example, prescribe “cost-sharing” flights as defined in the CASR Dictionary (and which are therefore flights excluded from the definition of “passenger transport operation” and in turn outside the scope of the definition of “air transport operation”) as operations for the purposes of CASR 119.010(1)(e), with the result that “cost-sharing” flights become an “Australian air transport operation”? For simplicity, assume the operation is one using an Australian registered aeroplane. Please note: This is a closed question.

Question 3: Is CASA confident that prescription in a MOS subordinate to CASR is a lawful way of in effect reversing the way in which the regulations operate on their face by, for example, turning an operation that is not an air transport operation as defined in the CASR Dictionary into an Australian air transport operation?

Comment: Manuals of Standards are supposed to contain standards and technical requirements. Prescription of operations in a MOS subordinate to a Part of CASR, to which operations that Part will purportedly apply as the consequence of that prescription, is neither a standard nor a technical requirement. It effectively operates as an application provision for the some of the regulations.

Question 4: Assuming CASA is confident in terms of question 3, does CASA comprehend the confusion that is caused when the outcomes produced by definitions applied on the face of the operative regulations can in effect be altered by sentences buried in Manuals of Standards?

Comments: The results in the example I raised include that a person proposing to engage in a “cost-sharing” flight as defined in the CASR Dictionary will reasonably assume, and correctly assume, that the flight will not be an “air transport operation” as defined in the CASR Dictionary. That person would also reasonably assume, but perhaps incorrectly assume, that the holder of a PPL may lawfully be the PIC of that flight and the flight does not have to be authorised by an AOC. But it appears the person should also somehow know that they need to look at the Part 119 MOS to find out whether their flight which is not an air transport operation is nonetheless an Australian air transport operation which must be authorised at least by an AOC.

[Old Akro]

I think this is aimed at the proposed Google / Uber type passenger drones.

[Geoff Fairless]

Clinton,

Your post has some assumptions within it.
1. You assume that whoever writes the stuff in one area of the CASRs has a working knowledge of the other CASRs;
2. That CASA would distribute changes widely within CASA, for comment, before publishing; and,
3. That the author of the CASR has expertise in the subjects about which they write.

My own experience within CASA, admittedly only four years, is that none of the above are necessarily true.;

[Clinton McKenzie]

I think this is aimed at the proposed Google / Uber type passenger drones.That may be true (I don’t suggest you made it up, OA) but that’s not what the words say. As you will understand, the scope of the prescription power is determined by the meaning of the words, not the subjective intent of whoever gave instructions for (e) to be included. But in any event…

If those proposed “Google / Uber type passenger drones” fall within the scope of the definition of “aeroplane” or “rotorcraft”, it follows that the existing definitions, including the definition of ‘air transport operation’ will cover them and para (e) is unnecessary. (There may be a need to fiddle with the word “registered” in the other paras, but that would at least keep 119.010 intuitive on its face.)

If, instead, those “Google / Uber type passenger drones” do not fall within the scope of the definition of “aeroplane” or “rotorcraft”, it follows that para (e) cannot be used to prescribe them.

Either way, (e) is not a good idea, even it’s lawful to use a MOS to increase the scope of the operations to which the CASRs, under which the MOS is made, apply.

Geoff: I can count on the fingers of one finger the number of people I am confident have a working knowledge of the CASRs (which in turn needs a working knowledge of the CARs and the Act and the exemptions and the other instruments…).

[outnabout]

Let’s not forget the crucial safety issue / s that has been prevented by:

119.245 Retention periods for flight related documents.
119.250 Retention periods for other flight related documents.

I see it has been incredibly unsafe for operators not to keep copies of the weather and NOTAMs for three months after a flight, and a copy of the journey log for six months after the flight.

Really pleased to see that CASA have sorted this, and made it a criminal offence not to comply.

[601]

I have heard that CASA, or the human employed by us in CASA, may write a perfectly fine and workable bit of legislation.
However, it then goes though other departments that have no idea about aviation to make it conform with legalese.
One titbit was that one does not write legislation unless a penalty can be applied to it.

Therefore something sensible, easily understood and not open to interpretation could be turned into a can of worms.

[Duck Pilot]

I have heard that CASA, or the human employed by us in CASA, may write a perfectly fine and workable bit of legislation.
However, it then goes though other departments that have no idea about aviation to make it conform with legalese.
One titbit was that one does not write legislation unless a penalty can be applied to it.

Therefore something sensible, easily understood and not open to interpretation could be turned into a can of worms.

The Office of Parliamentary Counsel (OPC) - the federal government’s drafting lawyers are the people who turn the perfectly easy reading and understandable regulations that are drafted by CASA SMEs, into the legal verbiage that most normal people cannot understand unless they have done a law degree…

[layman]

OPC

Not a lawyer but worked in and around, and socialised with, OPC lawyers for many years.

Heard many a tale of simple ideas being 'impossible' to articulate because of conflicts with existing law / legal precedent and the competing interests of interested parties. Result: legislation that no-one was happy with.

If you really want to see complexity, try reading the Social Security or Income Tax Assessment Acts.

[Clinton McKenzie]

No legislative drafter in CASA or OPC made the unilateral decision to add paragraph (e) to CASR 119.010(1). And CASR 119.010(1) is “perfectly easy reading and understandable” on its face. Is anyone confused by what it says?

The convoluted complexity is created by what paragraph (e) purports to do and the way it does it in the context of the rest of the regulations. You now have to look at two places – the CASR Dictionary and the Part 119 MOS – to work out whether your aeroplane or rotorcraft operation is an Australian air transport operation as defined in CASR 119.010. And putting sentences in a MOS is much easier for CASA to do than getting a change to the regulations.

Someone instructed the drafters to add a provision to the effect of paragraph (e) because that someone reckoned it would be a ‘good idea’ for CASA to have the power to expand the scope of the application of Part 119 at any time, by simply putting sentences in the Part 119 MOS. That ‘someone’ and many others have been left to their own devices in CASA for decades and encouraged to continuously build a regulatory regime that includes these kinds of mechanisms that enable them to, in effect, change the rules to implement their strongly-held opinions about what the safety of navigation requires from time to time. It’s also why the rules require so many certificates and licences and permissions and approvals and exemptions and so on, with the consequential unavoidable interactions with the regulator (and, of course, the payment of a fee).

This outcome is completely unsurprising when a regulator is left to run the process that produces most of the rules which determine so much of the regulator’s own powers in the rules. Great from the regulator’s perspective; not so great from the powerless regulated’s perspective nor – and let me be naively quaint – a rule of law perspective. What are the rules of the game, the dimensions of the field and the position of the goal posts for powerless aviation participants next year? Whatever the regulator decides.

[OPC] are the people who turn the perfectly easy reading and understandable regulations that are drafted by CASA SMEs, into the legal verbiage that most normal people cannot understand unless they have done a law degree…With respect, Duck, one merely needs to read various threads in this forum to see that lots of people struggle with written English. But let’s assume these SMEs are good at written English.

I’m sure that, in their mind, these SMEs wrote “perfectly easy reading and understandable regulations”. And they may well have been, in isolation from the whole of the rules into which they are going to plonked (though I must say that my invariable experience, when discussing these kinds of drafts with SMEs, is that a few ‘what if’s?’ and ‘did you really mean that’s?’ and ‘you realise that that word is defined to mean’s?’ resulted in lots of brow furrowing and revision). But the fact is that no bunch of words is a law in isolation.

[alphacentauri]

Someone instructed the drafters to add a provision to the effect of paragraph (e) because that someone reckoned it would be a ‘good idea’ for CASA to have the power to expand the scope of the application of Part 119 at any time, by simply putting sentences in the Part 119 MOS.

What you have described, is affectionately known within CASA Standards as, 'a hook'. Yes, its deliberate.

[Clinton McKenzie]

Indeed, alpha. I have another name for it, but I shouldn't print it.
One titbit was that one does not write legislation unless a penalty can be applied to it.Yes, that's a common furphy that's circulated.

There's plenty of legislation that contains no provision dealing with the consequences of a person's failure to comply with the person's obligations imposed by the legislation. Many of the aviation regulations should only have an administrative consequence for breach rather than a criminal consequence as well. The primary reasons for the aviation regulations being a confetti shower of strict liability offences are not that the imposition of strict liability is consistent with the AGD Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

[Sunfish]

....and given the lacklustre terms of reference, released today, of the forthcoming white paper, the Governments collective vision of Aviation, in all its forms, is that it is a necessary evil.

Do not expect any relief.

[Duck Pilot]

Everyone to their own opinion 😀😀😀
However I speak from experience having spent 2 years as a Standards Officer with CASA drafting Parts 91 and 135.

Clint,
With regards to the SMEs and written English, I certainly know how to write and interpret legislation!

[Sunfish]

Duck pilot: With regards to the SMEs and written English, I certainly know how to write and interpret legislation!


Dear Duck, with the greatest respect, you have just underlined Clinton's assertion.

I'm sure you are correct - you do know how to write and interpret legislation. However Sir, there is just one problem; YOU aren't the one that has to interpret what you have written! Someone else may not have the same verbal IQ as you do, nor the easy familiarity with the regulations and definitions you employ. This is a well known problem encapsulated in the old help desk joke: "The user rang and said he couldn't find the ANY key".

Toyota has its service manuals written by 16 year old apprentices to avoid the inherent familiarity people bring to the job.

I cannot think of a single reg. that doesn't have a debatable word somewhere in it.

[Clinton McKenzie]

Everyone to their own opinion 😀😀😀
However I speak from experience having spent 2 years as a Standards Officer with CASA drafting Parts 91 and 135.

Clint,
With regards to the SMEs and written English, I certainly know how to write and interpret legislation!If you’ve been able to get a legislative drafter to cut and paste provisions you've drafted - i.e. verbatim - into legislation, you’re not a Duck: you’re a Unicorn! (I say that with genuine respect and to be humorous, not dismissive, Duck.)

Slight drift from the central subject of this thread, but relevant to Sunfish’s point about debatable words, you’ll see from the thread about the 182 at YPOK, I asked CASA about the meaning of the operational requirement applicable to VFR operations at or below the higher of 3,000’ AMSL and 1,000’ AGL in G. The words of the requirement are in the Table 2.07(3) of the Part 91 MOS. The words are:Aircraft must be operated in sight of ground or waterThe answer given was:When operating below 1000ft AGL or 3000ft AMSL (whichever is higher), the aircraft must be operated in sight of ground or water, and the pilot must be able to physically see ground or water. This is illustrated in Table 2.07 (3) of the Part 91 MOS.

If something is in sight or within sight, you can see it. If it is out of sight, you can't see it. To apply this rule you must be able to actually see the ground or water.Let’s set aside the silliness of saying that something is “illustrated” in a MOS. The substance of the question is what the words in the MOS require, legally.

As to that substance, according to CASA, these words:Aircraft must be operated in sight of ground or watermean, in part or whole, that: The pilot must be able to physically see ground or waterMy immediate reaction to that was: “Well then, why not just say that in the rules (minus the split infinitive)?”

The reason that is important is, as can be seen in the thread about the 182 at YPOK, very experienced people are saying bollocks! to CASA’s answer. I'm "able" to physically see ground or water, in the sense that I'm capable of seeing it, but I'm not actually seeing it at the moment because it's not illuminated! (so the argument goes). Maybe CASA meant that the pilot must perceive, with their eyesight, ground or water when the pilot looks outside the cockpit. Not is able to see, but does see. So here we are, in 2023, still debating the substance of rules that have been around for many, many decades.

(This dubious statement in CASA’s response didn’t help its cause: The only time a NVFR flight would be operating lower than 3000ft AMSL or 1000ft AGL would be in accordance with subregulation 91.277(3) of CASR - taking off or landing or within the NVFR circling area of an aerodrome (within 3NM). At any other time, the aircraft must be at or above the NVFR LSALT in accordance with subregulation 91.277(2) - 1000 feet above the highest obstacle within 10NM of the aircraft. This height will always be above 1000ft AGL.That height might always be above 1,000 AGL, but it won’t always be above 3,000 AMSL. It’s lawful to cruise at 2,500’ AMSL Night VFR (provided you’re above 1,000’ AGL). By my maths, 2,500’ AMSL is below 3,000’ AMSL. If my maths are correct, this assertion is not true: The only time a NVFR flight would be operating lower than 3000ft AMSL or 1000ft AGL would be in accordance with subregulation 91.277(3) of CASR - taking off or landing or within the NVFR circling area of an aerodrome (within 3NM).

[compressor stall]

Interesting response Clinton - can you pls add it to that thread and I'll reply to it there. Keeps it in the one relevant place then.

[Clinton McKenzie]

I posted CASA’s answers at #211 in the YPOK thread, cs.

[tossbag]

The Office of Parliamentary Counsel (OPC) - the federal government’s drafting lawyers are the people who turn the perfectly easy reading and understandable regulations that are drafted by CASA SMEs, into the legal verbiage that most normal people cannot understand unless they have done a law degree…

​​​​​​​Clinton, is this the case?

[PiperCameron]

Clinton, is this the case?

Of course it is. Why else do you think CASA felt the need to back-draft some of said legal verbiage into the Plain English Guides we all know and love?? (Which only add to the paperwork and confusion, I might add)

[Clinton McKenzie]

Clinton, is this the case?It is true that OPC is the Commonwealth’s principal provider of legislative drafting and publishing services. (They have a website.) OPC publishes drafting manuals and delivers drafting training. OPC has a quality control (my words) role in what ends up in legislation. I have spent a long time working with drafters in OPC or in agencies with drafters with an OPC background. They would – as would I - dispute that they “turn the perfectly easy reading and understandable regulations that are drafted by CASA SMEs, into the legal verbiage that most normal people cannot understand unless they have done a law degree…”.

SMEs make policy. SMEs are experts in a particular subject matter (the clue is in the name). That subject does not include turning policy into law. Drafters turn policy into law.

A sentence that is “perfectly easy reading and understandable” in isolation can mean something entirely different when plonked into the middle of an Act or some legislative instrument. Drafters try to work out what that “perfectly easy reading and understandable” sentence is intended to achieve, and then try to use words that will achieve what is intended, in the middle of an Act or legislative instrument.

I think a big part of the problem in the CASRs is that they have been drafted on the basis that there must be an offence for contravention of each and every provision that imposes an obligation. Offence provisions are structured in a particular way. But many provisions could be drafted - and in my very strong operational opinion should be drafted - on the basis that breach results in only a potential administrative consequence.

‘Somebody’ in CASA made the policy decision that CASRs will be drafted on the basis that there must be an offence for contravention of each and every provision that imposes an obligation. Being one of policy, it was not a decision made by the drafters.

And to get back the subject matter of this thread: CASR 119.010(1) is "perfectly easy reading and understandable". My concern is what it does, how it does it and the resulting complexity.

[Arm out the window]

The Office of Parliamentary Counsel (OPC) - the federal government’s drafting lawyers are the people who turn the perfectly easy reading and understandable regulations that are drafted by CASA SMEs, into the legal verbiage that most normal people cannot understand unless they have done a law degree…

If this was the case in the past, it certainly isn't now, in terms of the 'perfectly easy reading and understandable' nature of what's put up for turning into legal-speak. You only have to look at most of the consultation drafts and guidance material to see how far removed from reality the 'new' regs are at any point in their development. Entrenched egotists in standards and reg development, combined with woefully out-of-touch and ineffective mid to senior leadership over recent years (bar a few good apples with actual cred and empathy for operators) have led to the piss poor state of most of the new Parts (and when I say new, roughly Part 61 onwards)

[Arm out the window]

Further to my last, the 'perfectly easy reading and understandable' part is only any use if what's understandable is also sensible. The embuggerance caused by extra admin burden on small air transport operators, fixed and rotary, is anti-safety, not pro.

[Clinton McKenzie]

As I said earlier in this thread and have said elsewhere, we’re overburdened by the product of complicators, not simplifiers.

Out of many examples, the rules requiring the promulgation of a NOTAM about a 4’ shrub are “perfectly easy reading and understandable” (and, of course, a criminal offence to breach). Draft NOTAMS about 4’ shrubs need to go the ‘in tray’ of a simplifier, not a complicator, in the NOTAM system and culled before being promulgated, rather than - as is so often the case in so many automated systems these days - the task being outsourced to users by dumping a huge pile of mined soil in their laps and leaving them to try to sift out precious gems or metal which may not be anywhere in there in the first place.

[Clinton McKenzie]

Here’s a light-hearted exercise that might help make a point. (As a matter of fairness, the sentence I’m about to quote was posted ‘on the run’ and is out of context. But that’s (kinda) the point.)

Duck Pilot: Please tell me whether you reckon the quoted sentence is “perfectly easy reading and understandable“ and, if not, how you would more clearly express what is intended. (Don’t worry about the words in square brackets, unless you want to.) [I know of at least] 2 regional airlines [who] have recently hired experienced foreign nationals and they weren’t kiwis without too many problems, both on jets and turboprops.

[Mach E Avelli]

Clinton you beat me to it. In the above quote ( written by someone who once worked at CASA ) we see convoluted language open to misinterpretation.
The statement “ and they weren’t kiwis” is redundant because the writer has already used “foreign nationals”. Full stops to form short sentences and rearranging the order would make sense of it.
Apologies to the literati for stating the obvious.
On the subject of full stops, in certain circles (e.g. advertising) these are no longer used. Removing them makes more space for errant apostrophes.

[Duck Pilot]

Didn’t realise that we had some school teachers amongst the Pprune cohort…

[Clinton McKenzie]

From whom would one learn how to write "perfectly easy reading and understandable" English?

[Clinton McKenzie]

Anyway... here are the answers I received from CASA's 'Regulatory Guidance Centre' on Friday (10 Feb 22).

Answer 1 is the important one. CASA can make 'black' mean 'white'.

Answer 2 is sophistry, particularly given the answer to question 1 and that my question 2 was a closed one. CASA could do it but, because CASA is not presently proposing to do it, CASA is not going to say CASA could do it.

The good news is that the "comprehensive guidance material" addresses any potential confusion.Question 1: In CASA’s opinion, does CASR 119.010(1)(e) authorise the prescription, in the Part 119 MOS, of an operation which is not an “air transport operation” as defined in the CASR Dictionary, such that the operation becomes an “Australian air transport operation” subject to Part 119 and, potentially, Part 121? For simplicity, assume the operation is one using an Australian registered aeroplane. Please note: This is a closed question.Answer 1: Yes, CASR 119.010(1)(e) is clear in its terms.

Question 2: If the answer to Question 1 is yes, does CASA consider that it has power in principle to, for example, prescribe “cost-sharing” flights as defined in the CASR Dictionary (and which are therefore flights excluded from the definition of “passenger transport operation” and in turn outside the scope of the definition of “air transport operation”) as operations for the purposes of CASR 119.010(1)(e), with the result that “cost-sharing” flights become an “Australian air transport operation”? For simplicity, assume the operation is one using an Australian registered aeroplane. Please note: This is a closed question.

Answer 2: It is highly unlikely CASA could prescribe what is defined in the CASR as a cost-sharing flight, as an air transport operation pursuant to CASR 119.010(1)(e). CASA need not express a concluded view as there is no proposal to do so.

Question 3: Is CASA confident that prescription in a MOS subordinate to CASR is a lawful way of in effect reversing the way in which the regulations operate on their face by, for example, turning an operation that is not an air transport operation as defined in the CASR Dictionary into an Australian air transport operation?

Answer 3: Yes. CASA assumes the validity of aviation legislation unless and until a Court finds the legislation is not valid.

Question 4: Assuming CASA is confident in terms of question 3, does CASA comprehend the confusion that is caused when the outcomes produced by definitions applied on the face of the operative regulations can in effect be altered by sentences buried in Manuals of Standards?

Answer 4: Yes. The aviation legislation has been in three tiers for many years. Civil Aviation Orders pre-dated MOS’s. Sometimes a legislative scheme is also affected by general exemptions or directions. CASA appreciates that such a scheme can sometimes be complicated and for that reason publishes comprehensive guidance material.
This guidance is current at the time it has been provided, however may be subject to change over time or at the discretion of the policy

[Mach E Avelli]

I consider my mastery of English to be at least average for a native speaker, ie AELP Level 6. Once upon a time I even had at least average knowledge of Air Law in multiple jurisdictions.
But I have great difficulty following CASA’s replies above, and much of their legislation in general. I have no problem understanding FAA, NZCAA, PNG CASA etc, but I know that I would fail Aussie Air Law/IREX and indeed probably would fail a thorough oral for reissue of a simple IPC. Fortunately for the flying public, I had the good sense to retire before my regulatory ignorance led to a major disaster.
If the language requirement for Australian aircrew is AELP 4 (can order a cup of coffee, read a parking ticket and hit on that cute guy/gal at the bar) then all the ‘rules’ that attract a penalty should be written so that pilots at AELP 4 can understand them. Lots of short sentences with no double negatives, split infinitives or “notwithstandings” would be a start.

[PiperCameron]

If the language requirement for Australian aircrew is AELP 4 (can order a cup of coffee, read a parking ticket and hit on that cute guy/gal at the bar) then all the ‘rules’ that attract a penalty should be written so that pilots at AELP 4 can understand them. Lots of short sentences with no double negatives, split infinitives or “notwithstandings” would be a start.

As I understand it, that's precisely what the Plain English Guides (PEGs) were supposed to be for.. but since (a) CASA haven't quite finished producing them and (b) they don't replace the 'rules' in any way, they're not exactly high on my reading list so who knows?

[Clinton McKenzie]

I find page 1 of the PEGs confusing and perturbing. For instance, it’s difficult for me to get my head around the implications of this sentence:This guide should not be used as a substitute for the aviation regulations or MOS, as it does not reproduce all the text that appears in the legislation.The perfect bureaucratic paradox. In order to mitigate the risk of confusion arising from the complexity of the legislation we've produced, we’ve also produced this plain English Guide to make it easier for you to understand the legislation. But you should not use the Guide as a substitute for the legislation. Which kinda means you have no choice but to get your head around the legislation, which could result in the confusion which justified the creation of the plain English Guide in which you'll find the sentence quoted above.

Page 1 also asserts, in passive voice:By following this guide, it is expected that you will comply with [specify subject matter] rules.That’s great, but what happens if that expectation is not met? The answer: If you rely in good faith on information appearing in this guide that turns out to be incorrect, we will consider any resultant non-compliance with the legislative requirements in accordance with the ‘just culture’ principles set out in CASA’s Regulatory Philosophy in determining what action, if any, we take.That’s all well and good, but CASA doesn’t decide what that clause, about the consequences of non-compliance with legislative requirements, in your contract of insurance means or what your insurer can do about it.

[PiperCameron]

Exactly. CASA had a chance to clear up the regulatory mess either they, or some nameless government department they wish to blame, created.. but methinks they've lost that chance forever.

I feel sorry for the students coming through now, having to dig through even more meaningless "guides" than existed only a few years back - only to find they've just wasted their time and become more confused in the process.

[Alpha Whiskey Bravo]

At one stage there last year it looked like Old Mate the local Plumber from Kickatinalong was required to get an AOC because he chose to fly his own C182 out to a property to fix a leaking tap and not charge for the aircraft at all. Nope going to do a job he is being paid for needs an AOC. Then there was me wanting to put my supermodel girlfriend on my own Biz Jet to go shopping in Melbourne while I wasn't on board, and bang! I needed an AOC too! The flying podiatrist in his own Mooney......Yep! AOC. All because "they" removed the words "For Hire or Reward" from the definition.

[Clinton McKenzie]

The current definition of "air transport operation" does include "for hire or reward". If there's no hire or reward, it isn't an "air transport operation".

The current problem, as I see it, is that CASA has chosen to interpret "reward" very broadly. I'm still waiting on answers to my last tranche of questions, one of which touches on the 'hire and reward' issue. (That reminds me to chase that up, because the CASA 'Guidance Delivery Centre' has usually been very prompt to respond.)

[PiperCameron]

The current problem, as I see it, is that CASA has chosen to interpret "reward" very broadly. I'm still waiting on answers to my last tranche of questions, one of which touches on the 'hire and reward' issue. (That reminds me to chase that up, because the CASA 'Guidance Delivery Centre' has usually been very prompt to respond.)

I imagine nothing would make them happier, Clinton.

Overheard recently at CASA GDC HQ: "Hey Boss, it's that Clinton guy again!! Look, I only took this here taxpayer-funded sinecure 'cause I thought nobody would ever think to call us, given reading the current regs would put any sane pilot's head in a tail-spin. D'ya feel like another round of golf? Maybe he'll give up and go away." :hmm: