CASA, er 'Say Again"

[4dogs]

Creampuff,

An interesting tease, I would have thought, given that most of CASA's inspectors do not know how the Convention affects them and therefore us.

But having gently cast the fly across your nose, the response was interesting - at least, one might say, a classic Sir Humphrey obfuscation followed by a classic diversion to an unrelated topic.

You mention Section 11 of the Civil Aviation Act 1988:

"11 Functions to be performed in accordance with international agreements

CASA shall perform its functions in a manner consistent with the obligations of Australia under the Chicago Convention and any other agreement between Australia and any other country or countries relating to the safety of air navigation."

In short, all that it means is that we agree to behave in a certain way. The document that guides us is not a book of rules at all, it is no more than a behavioural roadmap that, most importantly, recognises the sovereignty of individual States and the concomitant sanctity of the laws of that State. The Preamble is instructive:

"SCHEDULE 1 Section 4

CONVENTION ON INTERNATIONAL CIVIL AVIATION

PREAMBLE

WHEREAS the future development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to the general security; and

WHEREAS it is desirable to avoid friction and to promote that co-operation between nations and peoples upon which the peace of the world depends;

THEREFORE, the undersigned governments having agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically;

Have accordingly concluded this Convention to that end.

PART I - AIR NAVIGATION

CHAPTER I - GENERAL PRINCIPLES AND APPLICATION OF THE CONVENTION

ARTICLE 1

Sovereignty

The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory."

By definition the Convention of itself cannot modify that sovereignty. Now that is all very well, but what are our obligations that we agreed to?

That is best understood by reading Articles 37 and 38 (which holds the key to the original issue of legalising the agreement) of the Convention:

"CHAPTER VI - INTERNATIONAL STANDARDS AND RECOMMENDED PRACTICES

ARTICLE 37

Adoption of international standards and procedures

Each contracting State undertakes to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation.

To this end the International Civil Aviation Organization shall adopt and amend from time to ime, as may be necessary, international standards and recommended practices and procedures dealing with:
(a) Communications systems and air navigation aids, including ground marking;
(b) Characteristics of airports and landing areas;
(c) Rules of the air and air traffic control practices;
(d) Licensing of operating and mechanical personnel;
(e) Airworthiness of aircraft;
(f) Registration and identification of aircraft;
(g) Collection and exchange of meteorological information;
(h) Log books;
(i) Aeronautical maps and charts;
(j) Customs and immigration procedures;
(k) Aircraft in distress and investigation of accident;

and such other matters concerned with the safety, regularity, and efficiency of air navigation as may from time to time appear appropriate.

ARTICLE 38

Departures from international standards and procedures

Any State which finds it impracticable to comply in all respects with any such international standard or procedure, or to bring its own regulations or practices into full accord with any international standard or procedure after amendment of the latter, or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, shall give immediate notification to the International Civil Aviation Organization of the differences between its own practice and that established by the international standards. In the case of amendments to international standards, any State which does not make the appropriate amendments to its own regulations or practices shall give notice to the Council within sixty days of the adoption of the amendment to the international standard, or indicate the action which it proposes to take. In any such case, the Council shall make immediate notification to all other States of the difference which exists between one or more features of an international standard and the corresponding national practice of that State."

<img src="cool.gif" border="0"> <img src="cool.gif" border="0">

Oh, Creampuff, your reference to the Air Navigation Act 1920 seems to suffer from the same problem as your reference to s11 of the Civil Aviation Act 1988 - it does not ATFQ!
<img src="mad.gif" border="0"> <img src="mad.gif" border="0">
Section 3A merely records our formal ratification of the Convention in accordance with Article 91 - it has absolutely no operative effect in Australian aviation law of authorising anything in the Convention or the Annexes thereto.

So perhaps you might properly research a rise to my Convention fly, while I dredge up something on the Commissioner for phantom events.

<img src="tongue.gif" border="0"> <img src="tongue.gif" border="0"> <img src="tongue.gif" border="0">

[ 10 January 2002: Message edited by: 4dogs ]</p>

[Foyl]

Creampuff, that's hardly fair is it? The extract you've included isn't aviation related at all, it's a much maligned section of the Taxation Act. Can't remember precisely which one, and I'm not wading through Auslig to find it!

[grusome]

Richard,
I have a feeling that I should be involved in this argument, but for the life of me, I can't remember why!
I seem to have a recollection tho' that no matter what the question was one put to the legal department, the answer had no relevence. Are you saying that this is still the case after all these years?
Gru

[grusome]

Richard,
PS
I forgot to add "if one was of sufficiently high enough caste to actually get a response."
Gru

[Creampuff]

Hmmm.

I gave you some free clues 4dogs.

Perhaps you would like to review the High Court’s decisions in Teoh and Project Blue Sky again, then reconsider your assertions that: [quote] Section 3A [of the Air Navigation Act] has absolutely no operative effect in Australian aviation law of authorising anything in the Convention or the Annexes thereto... [Section 3A] seems to suffer from the same problem as [section 11 of the Civil Aviation Act]<hr></blockquote>.

And all the silly faces are most undignified.

You’ve earned yourself a penalty question.

Let’s say the DPP proposed to prosecute Disco Stu for breaching CAR 157(1)(a). The prosecution has evidence sufficient to prove beyond reasonable doubt that Stu was flying at 985 feet over a populous area. Stu comes to you for advice. He asks you whether the onus will be on the prosecution to prove that none of the exceptions to CAR 157(1)(a) in CAR 157 itself applies (e.g. that Stu was not in the course of taking off or landing) and that CAR 2(5) does not deem compliance in the circumstances. Or is the onus instead on Stu to prove that one of the exceptions applies or the deeming provision operates? The question is very important from Stu’s perspective. He doesn’t want to give evidence and does not want to waste money on high falutin’ lawyers.

Your advice (preferably sans graemlins) please.

Foyl: As to source, you’re on the right track. But what does it mean?

[ 10 January 2002: Message edited by: Creampuff ]</p>

[dragchute]

Creampuff,

Would not Disco Stu have an 'out' under the provisions of 157 (4) (a) (Stress of weather)? If such were the case section 30 (1) of the Civil Aviation Act provides a defence for “extreme weather conditions or other unavoidable cause”. The onus of proof would fall to Disco Stu Section 30 (2) but to the lesser standard of “the balance of probabilities”.

[JayJay]

Ah Puffer, Puffer, Puffer,

I care not who you are and incidentaly my beard is grey. As I tried to explain previously your wind up remarks do not diminish what you say about matters regulatory. If you are a barely post pubescent girl from any place you care to name then your writings, for the most part in my opinion, do you credit.

I suspect you well understood the simple point I was trying to make. 'Twas you who mentioned throwing throwing peanuts in the first instance.

The thread started with a piece of regulatory drafting that one of our number claimed to have some difficulty in comprehending. Not an uncommon situation I fear.

So, for my simplistic mind, would you be so kind as to formulate a reasoned response to the following.

How valuable is the ability to read and write and fully understand the law for the Regulator if those they seek to regulate can neither read nor write that particular language and therefore understand the law?

What is the desired outcome of a regulatory drafting style that many of the regulated cannot understand?

If the desired outcome is safety why is it neccesary for the drafting to be done by a legal department?

Is the desired outcome of regulatory drafting style to secure convictions, or dare I say it, cement the position of lawyers within the system?

Do you believe there would be value in mandating that all Chief Pilots or perhaps even pilots held law degrees prior to undergoing flight training?

It is brave new world on many fronts of course. The GA "industry" is in a fair degree of disarray. Is it neccesary to raise the bar of IQ and education for participants or lower the tone, rather than the intent, of the regulatory drafting style?

Would either have any demonstrable affect on safety?

I'm still old, still grey, still ugly, still under-educated but more importantly still alive and well and not broke either.

[gaunty]

snide mon vieux

Got em plumb dead centre Davey. Are you still putting a lick on the foresight?

[Air Ace]

"Do you believe there would be value in mandating that all Chief Pilots or perhaps even pilots held law degrees prior to undergoing flight training?"

What, and further reduce the average IQ of Australian pilots? <img src="mad.gif" border="0">

[Foyl]

CP, tax is an area I usually avoid at all costs, but it occasionally comes up in those legal circulars that city firms are wont to distribute.

So winding back the clock to 1998 (or at least that's when I think it was), I recall I was sitting in a room with a number of people with various legal expertise or qualifications (but none tax related)rocking with laughter when said section was read out from one of these mags. Our first reaction was "what the f(lying d)*** ?".

We eventually concluded that it was essentially for the purpose of giving the Taxation Commissioner the powers to ignore or alter certain events for the purpose of making a determination as to whether there had been some type of breach of the Act if it didn't ultimately affect the outcome, so that nobody could say "'ere, you can't do that!". We figured that whoever wrote it had a certain precedent in mind, but we couldn't figure out what the heck it was.

Then we went to the pub.

[ 11 January 2002: Message edited by: Foyl ]</p>

[Creampuff]

Some very pertinent points Dragchute. However, I think they do not address the main issue raised by my question. The main issue is: who bears the burden of proving that an exception to a rule – an ‘out’ - applies or does not apply in the circumstances.

Stu might take the view that if he is going to be prone to criminal conviction, the prosecution should bear the burden of proving that he was at 985 feet, and that he wasn’t in the course of taking off and landing, and that he wasn’t there through extreme weather or some other unavoidable cause, [i]and[i/] that he did not have a low flying approval, and that CAR 2(5) doesn’t deem compliance in the circumstances.

The alternative is that Stu may have in effect to prove he is innocent. That might be easy to do in theory, but it may entail Stu having to giving evidence and, accordingly, being prone to cross-examination. It’s all well and good to say that he just has to say, for instance, that he was forced there through bad weather, but the world’s a little different under oath with a beak thrusting weather forecasts and reports and witness statements under your nose. The latter alternative also may entail a much larger legal bill.

That’s the issue with which 4dogs has to deal. I’m sure that in the course of his advice, he will deal with the question whether and if so to what extent subsection 30(2) of the Act affects the burden and onus of proving the applicability or non-applicability of exclusions within CAR 157 and CAR 2(5). It may be that he thinks subsection 30(2) provides the only defence in any circumstances under any aviation rule – good for prosecutors; less good for the accused.

Good questions Snide.

Let me start by discussing a threshold, paradigm issue. I think a key strategy in conducting debates is to get clear exactly where our opinions diverge. That way we can refine the points on which we need to argue or agree to disagree if necessary,

Your questions seem to me to make a number of assumptions. It seems to me that you assume among other things that ‘the rules’ are mainly about, and are designed mainly for, pilots. (Note I said “mainly” not “only”.) Those kinds of assumptions are pretty common on this forum. Hence you may perceive that pilots’ understanding of the rules is of paramount importance and an indicator of the quality of the rules.

Here’s the threshold, paradigm issue. In my opinion, most of the aviation rules are not about and were never intended to be about pilots, and, accordingly, are not designed for and never were designed for, pilots. In this paradigm, the test of the efficacy of the rules is not whether a pilot says “I understand each and every rule”. For instance, in this paradigm the answer to the pilot’s complaint “I don’t understand what CAR 2(5) means” is “So what?”.

My observation is that competent pilots have little difficulty in comprehending and complying in substance with the very small proportion of the aviation rules that constrain their actions.

What are the aviation rules about and who are they for? The answers are manifold, and we don’t need to discuss them yet. I will however note that one answer is coincidentally mentioned in the course of this thread: Australia has international obligations to make rules that deal with certain subject matters and produce certain outcomes. I’ll also note that regulation is done in the community’s interests, not the industry’s or pilots’.

To ask why lawyers draft laws is analogous to asking why doctors conduct surgery. If you want all your aviation laws to be drafted and comprehensible by people with average-to-poor secondary education and expertise confined almost entirely to the operation of 1970s machinery, don’t tell the lawyers: tell the politicians. Lawyers have no vested interest in saving strong-willed incompetents from themselves. The mess that strong-willed incompetents leave behind is far more lucrative.

And that leads me to a point about the current and seemingly intractable regulatory reform quagmire in Australia. In my opinion, that quagmire is the inevitable product of politicians having been fooled into a regulatory paradigm that assumes aviation safety regulation is mainly about and for pilots. In that paradigm, most aviation safety regulatory problems can be fixed by throwing pilots at them.

It cannot work, and, accordingly, it has not worked.

A pilot can tell you ad nauseum what he doesn’t like about the current rules (witness some of the discussions on this forum.) And that’s entirely appropriate and to be encouraged. But try getting him to tell you precisely what he does want, beyond vacuous motherhood statements; then try getting him to explain the process through which he proposes to reconcile his wants with all the irreconcilable wants of other pilots; then try getting him to put the resulting draft rule in writing, coherently. It can’t happen, and consequently it doesn’t happen. And what about the other 90% percent of rules whose subject matter and policy are completely removed from the pilots’ sphere of expertise? Does a pilot, notwithstanding his having avoided the IQ-reducing handicap of a law degree, understand the constraints placed on the legislative competence of the Commonwealth with respect to aviation? the requirements as to the manner and form of Commonwealth legislation? the dictionary?

Just as a lawyer’s understanding of the aviation law does not qualify her to be an aviator, an aviator’s understanding of aviation does not qualify her to be an aviation regulator. Nor does going broke slowly or even making money in an aviation business qualify someone to be a regulator. This is not a criticism. It is a fact.

True it is that the politicians have learnt their lesson (again) and are now slowly reinstalling regulatory experts in the key regulatory positions in the Australian regulator. (The head of the regulatory authority in the greatest aviation nation on earth is, of course, a female career bureaucrat without professional pilot qualifications.) Further, the shortcomings in the Australian regulator’s structure have been demonstrated. Repeatedly. That structure won’t survive Mr Anson’s report. But much damage has been done in the interim.

So let’s see if we diverge at the paradigm stage, greybeard. Who do you say aviation laws are about and for?

Foyl: Getting very warm. I’m wrapping that kewpie doll... But I need the reference.

[JayJay]

Naughty Creampuff!
You haven't answered the questions. You are asking new questions of the humble Snide. Snide will play for a short while.
I think the aviation regulations aught to be ABOUT and FOR the community, society if you like, as a whole.
The regulations should provide a framework by which participants, at any level, might in the easiest/simplest possible manner go about their enjoyment of, or business of aviation. They should provide protections for active and passive participants and they should outline, provide safeguards for non participants. They should allow for a climate in which activities such as research, manufacturing, testing and development can proceed with minimal intervention to the possible betterment of the participants at all levels and society as a whole.

[helmet fire]

Nice "vacuous motherhood statement"...... <img src="wink.gif" border="0"> <img src="wink.gif" border="0">


But you know we all agree.......... <img src="smile.gif" border="0">

[dragchute]

Creampuff,

I thought I had covered the points to your question; if not somewhat succinctly. My dealings with the law were many years ago, from the criminal aspect, and I hasten to add on the side of the prosecution.

Onus of proof rests with the prosecution in the first instance. The alleged offender is to be charged with those facts that prima facie constitute and offence. The [i]onus[I/] to discharge himself is then cast upon him. If he fails to do so he may be convicted. (Lee Fan -v- Dempsey 1907)

Section 30 sets the standard for the defendant to discharge himself. Not to the higher standard required by the prosecution beyond reasonable doubt, but to the lesser standard on the balance of probabilities.

Any investigator worth his salt would ensure that he was able to rebut any evidence offered by the defendant under Section 30 or the case should not proceed.

Editided to 'fix' the italics!
[ 12 January 2002: Message edited by: dragchute ]

[ 12 January 2002: Message edited by: dragchute ]

[ 12 January 2002: Message edited by: dragchute ]</p>

[Creampuff]

au contrare greybeard.

I merely asked you one threshold question, for reasons that I thought were adequately explained. Thanks for your considered response.

Further, I think an objective reader would agree that I addressed most if not all of your questions, at least indirectly and in very general terms, in the course of my earlier post.

Nonetheless, I will answer them again more directly and, if necessary, more comprehensively, in the near future.

Dragchute: don't you just hate the formatting rigmorole?

[CoodaShooda]

[quote] Further, I think an objective reader would agree that I addressed most if not all of your questions, at least indirectly and in very general terms, in the course of my earlier post. <hr></blockquote>

Sorry CP, the objective reader thinks you conveniently avoided addressing the questions
albeit indirectly and generally.

Rules seem nowadays to be for the guidance of the wise, the obedience of fools and the everlasting employment of lawyers.

[daytrader]

Pompous semantics and an indulgence in legalese is neither intellectually taxing nor admirable nor efficacious.

Given that I am still waiting for my first ramp check in 6 years of commercial ops perhaps a reallocation of resources away from the CASA legal dept is warranted.

Do CASA legal officers often proon at taxpayers expense...

[Creampuff]

Snide

1. You asked: [quote]How valuable is the ability to read and write and fully understand the law for the Regulator if those they seek to regulate can neither read nor write that particular language and therefore understand the law?<hr></blockquote>

I said: [quote]My observation is that competent pilots have little difficulty in comprehending and complying in substance with the very small proportion of the aviation rules that constrain their actions.<hr></blockquote>

Your question contains a number of implicit generalisations and assumptions whose validity, like most generalisations and assumptions, is easy to refute.

In order to understand and comply with what the law requires, it is not necessary to be able to read or write the law.

When I learnt to fly, my instructor said to me: Don’t fly lower than 1000 feet above any people, unless you have a very good reason. I took that advice, and managed to comply with a very important rule without having to read it. Further, if I continue to follow my instructor’s teachings and take advantage of others’ knowledge, I will continue to comply with the rules without having to read a single one.

I’ll bet you haven’t read the South Australian Crimes Act from start to finish, and that if you did, you would find many complex provisions whose meaning is somewhat obscure to you. Yet, miraculously, you manage not to commit any (most?) of the crimes it proscribes.

These nebulous people who do not understand what they need to do in order to comply with the rules are, curiously, never identified. My perception is that the claims that the rules are too complicated are usually made by self-proclaimed experts who make it their business to dredge through the rules and, upon discovery of some provision that they find difficult to understand, presume that everyone else is equally incapable. The provision is usually one that has no substantial application to or effect upon their activities, and about which the people upon whose behalf they presume to speak could not care less.

Are there really pilots out there fretting that they could be flying at 985 feet over populous areas rather than 1000 feet, if only CAR 2(5) and the rules of the air under the Chicago Convention had been spelt out more clearly by CASA? Are there really pilots out there who would make command decisions based upon the onus and burden of proof in prosecutions for breaches of the rules? (“Captain, I would suggest we divert to X, because we only have to establish stress of weather on the balance of probabilities.&#8221 <img src="wink.gif" border="0">

You seem to be advocating that the rules must be written and comprehensible by “the Regulated”.

“The Regulated” include 16 year old student pilots with zero aeronautical experience, and Tibetan peasants boarding a VH-registered jumbo in LAX.

The flaw in your position is now evident. In order for the rules to be written and understandable by all of “the Regulated”, the rules would have to be written by illiterates without any aviation experience. That cannot happen.

You must concede that some of “the Regulated” will inevitably be unable to understand some of the rules, because some of “the Regulated” are illiterate and know nothing about aviation.

I think the underlying issue here, to which issue I alluded in my earlier post, is that there is a group – more accurately, clusters of individuals - among “the Regulated”, who think they are the apotheosis of aviation and, accordingly, the efficacy of the rules is to be measured against their standards of literacy and aeronautical experience. Unfortunately, those individuals mistake their value judgments for objective standards. (CoodaShooda?)

The rules have always been and will continue to be made through a process whereby experts in the subject matter of the particular regulation, and representatives of the elected government, decide what the policy of the particular regulation is to be. The subject matter may have nothing to do with, and often has nothing to do with, the people who think they are the apotheosis of aviation. Further, “the Regulated” may have a rule imposed on them even if they don’t think it’s a good idea. Indeed, that’s why rules are necessary: if everyone thinks something is a good idea, then everyone would do it of their own accord and no rule would be necessary.

Another reason the regulatory reform process has stalled is because the regulator is simply incapable of resolving the policy of the rules. It can’t decide internally what it wants, and seems to be labouring under the misconception that some consensus will emerge from the industry. The product – to the tiny extent that anything is being produced – will always be a camel.

2. You asked: [quote]What is the desired outcome of a regulatory drafting style that many of the regulated cannot understand?<hr></blockquote>

See my answer to question 1.

3. You asked: [quote]If the desired outcome is safety why is it neccesary for the drafting to be done by a legal department?<hr></blockquote>

I said: [quote]To ask why lawyers draft laws is analogous to asking why doctors conduct surgery. If you want all your aviation laws to be drafted and comprehensible by people with average-to-poor secondary education and expertise confined almost entirely to the operation of 1970s machinery, don’t tell the lawyers: tell the politicians. Lawyers have no vested interest in saving strong-willed incompetents from themselves. The mess that strong-willed incompetents leave behind is far more lucrative. <hr></blockquote>

See also my answer to question 1.

4. You asked: [quote]Is the desired outcome of regulatory drafting style to secure convictions, or dare I say it, cement the position of lawyers within the system?<hr></blockquote>

The desired outcome of regulatory drafting is to give legal effect to the desired policy. In the case of regulations that prescribe or proscribe things, the desired outcome is to describe with precision that which is, and only that which is, the prescribed or proscribed thing.

In the case of regulations that attempt to give effect to muddle-headed policy, the outcome is a camel.

See also my answer to question 3.

5. You asked: [quote]Do you believe there would be value in mandating that all Chief Pilots or perhaps even pilots held law degrees prior to undergoing flight training?<hr></blockquote>

I think that everyone benefits from any further education. As well as broadening one’s horizons, it helps remind one of how little one knows. The potential benefits for pilots are therefore evident.

I don’t think a law degree should be mandatory. I do however think that if pilots want to be treated as professionals, their cause would be better served by the acquisition of reading and writing skills of a professional standard. The pilot’s occasional refrain “I don’t need to read and write to be safe pilot” merely begs the question, and devalues the currency.

See also my answer to question 1.

6. You asked: [quote]Is it neccesary to raise the bar of IQ and education for participants or lower the tone, rather than the intent, of the regulatory drafting style? Would either have any demonstrable affect on safety?<hr></blockquote>

You’ve now raised a threshold, paradigm issue. Unless and until we have some evidence as to the extent, if any, to which the content and form of the rules affects safety, we don’t know whether it would make any difference if the rules were, for instance, written in Swahili. And that’s another reason for the regulatory reform quagmire. Decisions are made on the basis of assumptions and politics, rather than empirical evidence. The single most significant improvement in the road toll was caused, not by more or simpler rules, not by more education, not by more advertising, not by tougher penalties, but rather by the construction of more dual, separated carriageways.

[Lead Balloon]

Love your work Creampuff.

You'll have to stop this rational and well thought out argument before someone accuses you of being the antichrist.

[CoodaShooda]

[quote] Lawyers have no vested interest in saving strong-willed incompetents from themselves. The mess that strong-willed incompetents leave behind is far more lucrative. <hr></blockquote>

CP
Are you sure you mean this in the literal sense? It does tend to reinforce the value judgements of many lay people that the legal profession does not have the best interests of the community at heart. <img src="eek.gif" border="0">

(PS You haven't made a value judgement of my objectivity based on what little you glean from pprune, have you? <img src="tongue.gif" border="0"> )

LB Agree. This is a very useful thread. Keep it up CP. <img src="smile.gif" border="0">