Policy is not law – AAT buckets CASA decision

[Brian Abraham]

Thanks swh. What about if the business expanded to the point that the boss was no longer able to handle the flying required and employed a person to handle the flying side as his/her only task, flying the companys employees and others incidental to the business, bankers, accountants, and professional legal services. ie full time pilot.

[aroa]

Hulloooo!...

Am I missing something here.?

swh:... claims there IS a safety case between CHTR and RPT and that will be
certified as the same but different with a name change to "Passenger Transport"
In reading the AAT decision, I got the gist that there was NO safety case/ difference in the Caper Case from today CHTR : and tommorrow RPT.
Same aeroplane, same pilot(s) same route etc... just a different job lot of pax. So what???
All this CASA crap about "interposed entities", and other "legal" wankery is LSD users trying to muddy the issue. And they were banging on about 191, when the reg was 206. ANYTHING to make a "case" will do.

Someone a lot smarter found that it didnt.!

The control freaks in CASA have really lost the plot.. the original wherewithall
WAS that CASA is a SAFETY regulator. But by their "regulations" that has evolved into economic regulation as well, doing untold damage to businesses, individuals and the prosperous development of any GA industry.

I had a good chuckle at yr bs statement... PPL holder with an a/c and a camera, nothing more. Tertiary educated with overseas Photographic qualifications, actually..ie a Professional Photographer.

And.. "therefore by being paid for producing specialist photographs I could be prosecuted for obtaining money by deception and fraud" How very CASAist.

By State and Federal Police?... dont make me laugh.! The AFP are not even interested in prosecuting CASA persons who have perjured themselves and conspired to pervert the course of justice.!
A bloody sight more serious that a photgrapher being paid for a photograph, dont you think?
And from past experience I do know where all the real frauds/ makers of fraudulent statements are: those that say and do anything to make a "safety" case.

Perhaps I could charge some CASA persons claiming to be AWIs, and dont even know what they're looking at, so their claims as "experts" are obviously fraudulent, and they should be dealt with by the State or Federal police.
I wish.

MY point is,and it seems for some its a hard concept to grasp, CASA is way beyond its true mission of safety and harm minimisation, and is heavily into economic regulation. NOT its territory, suposedly..or by Act

In the totaly fcuked up CASA regulatory environment, some businesses can use an aeroplane as a business tool, some can't.
And its my belief that the legal basis/bases in my case are wrong /illegal /whatever.

It breaches my civil rights as a Photgrapher, it denies me the right to free trade, it denies me the right to earn a living... AND it has absolutely SWEET FCUK ALL to do with "safety." The "crime" is in the commerce.

CASA "investigator" to a client. "this is all about commerce... its got nothing to do with safety... but dont say that to the jury" !

So there was one honest one amongst all the lying b*****s!

[aroa]

And swh.. in yr final para re transport, you are trying to be too clever by half... re "not being disclosed in the invoice" Does that alter CASA's interpretation of commerce then ??

Pvt helicopter pilot flies shipping pilot to ships and back, both the ships pilotage fees and helicopter times listed on Invoice. PVT operation.
( hope to goodness he didnt take a beaut aerial photo of the ship to sell to the shipping company as well ..!!)

PPL LAME flies to YWOOP for maint. job, a/c time listed on the invoice and maintenance times itemised. Pvt.operation? Just hope he didnt carry his toolbox with him, or if he did, no tarmac trawlers were at the other end.
Otherwise that would be????? OMG..!! CPL and AOC reqd.. the bleedn criminal!
Safety case, there... Nah !

State Government Dept has several aircraft, flown by IFR CPLs, carry folk from a variety of Depts, who can book seats on, and the other Depts are invoiced for the carriage of those pax. No CP or AOC. PVT operation.

Different strokes for different folks.? Or a bucket of regulatory worms?
Or just a monumental legalistic nightmare/ aka a clusterfcuk.?

And the Aviation industry at whatever level, suffers from it all.
Life's a bitch.!

[swh]

Originally Posted by Brian Abraham

What about if the business expanded to the point that the boss was no longer able to handle the flying required and employed a person to handle the flying side as his/her only task

Still a private operation, see CAR 2 (7)(d)(v) "the carriage of persons or the carriage of goods without a charge for the carriage being made other than the carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft"

A friend of mine is a captain on a 744 business jet (not Australian registered) that is flown as a private operation. I also know of a couple of companies that use PA-31s to fly their staff around in Australia.

Originally Posted by aroa

Tertiary educated with overseas Photographic qualifications, actually..ie a Professional Photographer.

Your degree means absolutely nothing, it is not a CP(A)L and it is not an AOC. Anyone in Australia can call themselves a "professional photographer", it is a self proclaimed title.

For aerial photography the only relevant points are to get paid for taking aerial photos, the pilot needs to hold a CPL or higher, and the work is conducted under an AOC. The photographer does not need to hold any form of qualification, and the photographer does not need a pilots licence.

Originally Posted by aroa

Does that alter CASA's interpretation of commerce then ??

No idea, however for your case, a private operation for aerial photography exists if "no remuneration is received by the pilot or the owner of the aircraft or by any person or organisation on whose behalf the photography is conducted".

You admitted that you received money, you would have former clients with photographs and invoices. CASA has all the evidence it needs to demonstrate that you were not conducting private operations. You were performed operations not permitted by the licence category you held (PP(A)L), and were doing so without an AOC.

Originally Posted by aroa

Pvt helicopter pilot flies shipping pilot to ships and back, both the ships pilotage fees and helicopter times listed on Invoice. PVT operation.

I am aware of no such operation, and I find it very hard to believe. I have seen the contract requirements stipulated for transfer of pilots to ships at some Australian ports, a PP(H)L holder would not be acceptable by a long way.

Originally Posted by aroa

PPL LAME flies to YWOOP for maint. job, a/c time listed on the invoice and maintenance times itemised.

see CAR 2 (7)(d)(v)

Originally Posted by aroa

State Government Dept has several aircraft, flown by IFR CPLs, carry folk from a variety of Depts, who can book seats on, and the other Depts are invoiced for the carriage of those pax. No CP or AOC. PVT operation.

That would depend on the Government Department, and if the aircraft are considered state aircraft or Australian aircraft. Military, police, and customs are treated differently, that is standard internationally.

[Frank Arouet]

swh;

Exactly what is your reason for standing up to "the law" as the bastard it is evolved to be written" ?

Did you perhaps write it, or help in that bastardization of the regulatory reform process?

Is your income dependent upon it.

Or are you just another out of control, arrogant, Corporate Psychopath?

[Brian Abraham]

swh, so the trucking operator could employ a pilot and have him/her on call 24/7/52 and flying 210 hours a month without CASA having any concern because they deem it it to be private?

[Shell Management]

aroa

Yes, it is inappropriate for a safety regulator to have an economic regulation role too.

I'm amazed at the implication that CASA treat charter safety less seriously than 'RPT' safety.

But I supose that two tier system does allow those fanciful Rain Man style claims for Australian air safety supremacy.

[Sunfish]

SWH, I think Frank an Aroa have a case in regard to photography and one or Two other matters..

Still a private operation, see CAR 2 (7)(d)(v) "the carriage of persons or the carriage of goods without a charge for the carriage being made other than the carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft"

Is information acquired a "good for the purposes of trade"?

If someone gives Joe the photographer a memory card, and Joe flies off and fills it with images, and then returns it, exactly what "trade" has taken place?

Similarly, if I take Fred the Real Estate agent for a flight to look at some properties from the air, what "goods" have changed hands?

[swh]

Originally Posted by Frank Arouet

Exactly what is your reason for standing up to "the law" as the bastard it is evolved to be written" ?

Let me get my position clear here, I am sticking up for a legitimate GA operator (the one at the start of this thread) who was penalised for abiding by the law, but was rolled by a CASA interpretation of the law put into policy.

We have had a tread drift here on here when another person claimed to have been rolled by CASA under the same policy, however it is clear they were not. They were operating outside of the law. I am not condoning a person who blatantly disregarded the rules, and I believe most people in industry would feel the same way.

Originally Posted by Brian Abraham

so the trucking operator could employ a pilot and have him/her on call 24/7/52 and flying 210 hours a month without CASA having any concern because they deem it it to be private?

That is correct, as long as all of their operations were all private. However the employer would also need to meet their normal obligations under workplace health and safety which in my view are more restrictive than what CASA regulates, as they also look at all the work related activities.

Originally Posted by Shell Management

it is inappropriate for a safety regulator to have an economic regulation role too.

CASA is not an economic regulator, i.e. it does not prevent any person or organisation from applying for an AOC (they are not required to approve every application) for activity which requires an AOC. It may seem like semantics, it is up to the applicant to determine if they are going to conduct an activity which requires an AOC.

CASA does however administer the regulations which require operators to obtain AOCs for various operations, and enforces those rules.

The requirement for operators to obtain AOCs comes from ICAO Annex 6, it is not something Australia dreamt up.

Originally Posted by Shell Management

I'm amazed at the implication that CASA treat charter safety less seriously than 'RPT' safety.

The distinction is not unique to Australia, schedule and non-schedule operations are incorporated from the various ICAO annexes. It is the same in the US and Europe, where the Federal Aviation Administration and the European Aviation Safety Agency issue AOCs.

Originally Posted by Sunfish

I think Frank an Aroa have a case in regard to photography and one or Two other matters..

No, for aerial photography to be private you need to look at the previous paragraph in CAR 2 (7)(d), there are 8 test in CAR 2 (7)(d) for various private activities.

CAR 2 (7)(d)(iv) "aerial photography where no remuneration is received by the pilot or the owner of the aircraft or by any person or organisation on whose behalf the photography is conducted"

They were receiving remuneration for the aerial photography, how the record of the photography is presented is irrelevant, it could be a hard copy print, a negative, or data on a USB stick/SD card.

Similarly, if I take Fred the Real Estate agent for a flight to look at some properties from the air, what "goods" have changed hands?

CAR (7)(d) has 8 tests to determine if an operation is private. If it does not meet those tests, it is then either aerial work or charter depending on the actual nature of the flight.

A passengers occupation (i.e. Real Estate agent ) is irrelevant in determining the type of operation.

[Frank Arouet]

swh;

As a private pilot with a private aeroplane, CASA rolled me when I had no interest in making any money out of flying. My crime was to just be there for them to abuse. My crime was to claim an injustice for a wrong done to me by some mates of a senior CASA identity. My crime was complaining about CASA "loosing" incriminating evidence so it could not be used against their mates. My crime was to politicise the matter. My crime was get to a Commonwealth Ombudsman's recommendations against them. None of these justify being treated as a criminal.

Let me get my position clear here, I am sticking up for a legitimate GA operator (the one at the start of this thread) who was penalised for abiding by the law, but was rolled by a CASA interpretation of the law put into policy.

Perhaps what you and I are at odds with, is the fact that you may well be legally right, but I see CASA as corruptly administering bad laws that they can and do exploit to allow them to do whatever they feel like. I regularly see CASA claim the legal high ground when it was them that made those bad laws in the first place.

I am arguing about the morality and interpretation of the laws.

It would therefor appear we are in agreement on this matter.

I sincerely apologize if I intimated you were a CASA stooge especially if you aren't.

That insult is simply too much.

[Torres]

"aerial photography where no remuneration is received by the pilot or the owner of the aircraft or by any person or organisation on whose behalf the photography is conducted"

Would that not imply CASA is exercising economic regulation, contrary to it's legislative mandate?

It would appear to me that the only difference between a PPL taking a photograph from an aircraft and a commercial photographer taking a photograph from an aircraft, is a financial transaction that occurs at some time post flight, with no impact on the safety of the flight?

Indeed, that commercial photographer has not committed an offense until some time after the flight - which may be in days, months or years - when he receives remuneration for sale of the photograph? How can an economic transaction at some time in the future change the nature and safety implications of a flight that took place at some stage in the past?

Of course, we may not be having this debate twenty three years after the Australian aviation regulatory reform process commenced, had CASA spent the estimated $200 million cost of regulatory reform far more wisely and completed the task in a prompt and efficient manner as soon as possible after 1988.

[Up-into-the-air]

The point of this - CASA Reg 152 Interpretation and Instrument 405/09:

This is a great discussion, but behind all this is the fact that the Regs. are not crystal clear. What is worse, CASA are not dealing with this correctly by fixing errors in the regs. at Government level.

CASA, as the AAT points out can not vary regs.

This can only be done by Government.

Reg 152:

I have just been working with matters arising from this reg:

152 Parachute descents
(1) A person must not make a parachute descent if the descent is not:
(a) authorised in writing by CASA; and
(b) conducted in accordance with the written specifications of CASA.
Penalty: 25 penalty units.
(2) An offence against subregulation (1) is an offence of strict liability.
Note For strict liability, see section 6.1 of the Criminal Code.
(3) It is a defence to a prosecution under subregulation (1) if the parachute descent was a necessary emergency descent.
Note A defendant bears an evidential burden in relation to the matter in subregulation (3) (see subsection 13.3 (3) of the Criminal Code).

CASA have issued an Instrument - CASA 405/09, which does not meet the requirements of reg 152 [in fact it changes the requirements of Reg 152].

As a result, the Parachute Federation appear to be in breach of reg 152.

The recent AAT decision, [ Caper Pty Ltd T/a Direct Air Charter and Civil Aviation Safety Authority [2011] AATA 181 (21 March 2011) ] tells CASA that it must use the regs correctly or face the consequences.

In Instrument 405/09, at section 11, the instrument is incorrect, as there must be a written agreement in place where a parachute operation occurs between the operator of a registered airport, CASA and AirServices for the operation to occur regularly from controlled airspace.

The instrument is not clear in this requirement, and does not appear to call for the signed agreement. There must be some insurance implications as well for operators.

Another CASA bungle??

[swh]

Originally Posted by Frank Arouet

I regularly see CASA claim the legal high ground when it was them that made those bad laws in the first place.

I disagree with the premise that CASA "made those bad laws in the first place", our laws are made by politicians (often written by the Attorney Generals Department). It is parliaments role to debate their merits before they are enacted, if we have bad laws, it is the politicians that dropped the ball.

Government Departments administer the law, they are to some extent just the messenger and facilitator, they are also limited under the law as to what they can do.

Originally Posted by Torres

Would that not imply CASA is exercising economic regulation, contrary to it's legislative mandate?

No, they are tests the operator (for a private operation the operator is the PIC ) needs to apply before conducting the activity. The law stipulated the tests, and stipulates the requirement an operator needs to comply with.

CASA is not restricting anyone from doing any activity. It is the operator that needs to determine if the activity is being done for hire or reward before the event. If an activity requires an AOC, CASA are not restricting any operator from applying for an AOC. CASA does not have to approve every AOC application, and most fail due to the documented systems and procedures (i.e. the internal self regulation) not being adequate.

CASA therefore is not regulating any operator from performing any activity, as I said before it may seem like semantics.

People think when CASA collect evidence after an activity that includes invoices, bank statements, affidavits etc that they are "regulating" economic activity. They are in fact collecting evidence on past events, they did not prevent (i.e. regulate) an operator from conducting the activity. It is up to the operator to determine the type of activity before the event, and if they need an AOC to perform it prior to the event.

The evidence is used to determine if the operator applied the correct tests prior to the activity, if the operator failed to apply the correct test, they maybe subject to prosecution, again after the event.

Originally Posted by Torres

It would appear to me that the only difference between a PPL taking a photograph from an aircraft and a commercial photographer taking a photograph from an aircraft, is a financial transaction that occurs at some time post flight, with no impact on the safety of the flight?

Aerial photography is a prescribed purpose under the Act.

A private flight would have no contract in place prior to flight, an aerial work flight would have a contract in place. The contract would include the invitation to treat (i.e. the operator would advise their capabilities, and the client would advise the photo location) as well as the terms of settlement (in exchange for taking the photo the client will agree to give consideration to the operator).

The operator can therefore make an assessment prior to commencing the flight if it is a prescribed purpose requiring an AOC.

A private flight is not required to meet a number of requirements that aerial work flight needs to meet, I have covered that earlier. http://www.pprune.org/dg-p-general-a...ml#post6347015

[Frank Arouet]

our laws are made by politicians (often written by the Attorney Generals Department)

What then do The Office of Legal Counsel do to justify their budget, their insurance cover, their staff numbers and their consultative costs.

Why do we have ex CASA OLC people working for The Attorney Generals Department and some working as consultants?

I believe CASA make the laws that are then "rubber stamped" by ignorant politicians bereft of aviation knowledge, and understanding, after Attorney General "rubber stamping" and processing for Parliamentary consideration.

The word "safety"guarantees this process as nobody, who is answerable to anybody, wants anything to happen that may come back to bite them on the bum.

Civil Aviation Authority should never have had a name change to Civil Aviation Safety Authority. I believe that word, (SAFETY), in the name change was put there for the purpose of misuse.

[Sunfish]

SWH:

I disagree with the premise that CASA "made those bad laws in the first place", our laws are made by politicians (often written by the Attorney Generals Department). It is parliaments role to debate their merits before they are enacted, if we have bad laws, it is the politicians that dropped the ball.

Government Departments administer the law, they are to some extent just the messenger and facilitator, they are also limited under the law as to what they can do.

LIKE HELL THEY DO!

Government Ministers will not do ANYTHING without receiving advice from the public service!!!!! The Fcuking Minister who introduced the laws giving CASA its powers would know that they were written, if not by, in deep consultation with, CASA.

Furthermore, Ministers and back benchers do not have a snowballs chance in hell of finding the time to debate such weighty matters as whether a private pilot should be allowed to carry a commercial photographer for hire and reward. There probably isn't even a single pollie in any Australian Parliament with a pilots licence.

The proposed legislation is given to the Parliament by its drafters as a complete package and that is the end of it unless it is going to have some wide ranging effect on the average mug punter, like a GST or carbon tax. The laws and regulations governing CASA were most probably presented and debated by a half empty chamber at 10.00 pm on a winters night.

To suggest otherwise reveals either a deep misunderstanding of legislative process or an intent to deliberately mislead.

It is perfectly clear that the regulations are deliberately vague and stated in their current convoluted format because it maximises CASA powers while minimising their accountability for their behaviour in terms of equity and natural justice. Look no further than the "treatment" meted out to Butson and Polar Air, which I believe is still the subject of a lawsuit.

[PLovett]

Chaps, most of what is being debated here are regulations which do not get debated in Parliament. All regulations stem from an Act of Parliament, in the case in point, The Civil Aviation Act of whatever year.

That Act gives the Gov Gen the power to make regulations for the prescribed purposes set out in the Act. Now, I doubt that Her Excellency spends much of her day worrying about what regulations she should make affecting aviation. However, the regulatory authority, otherwise know as the dark side or CASA will occasionally decide that some regulatory changes should be made. They will set out in a form of instruction as to what they want to achieve and the Parliamentary Counsels' office will put that into an acceptable form. Their job is to both draft the regulation and ensure that its consequences on other legislation is accounted for. They do not have any input on what is contained therein other than to make sure it complies with the existing legislation.

The draft regulation is then tabled (literally, the big table in the centre) in the House of Reps and sits there for a certain number of days (don't ask I can't remember) and if no pollie picks up on it the thing then goes to the Senate for a similar number of days. Same thing there, if not challenged then the thing goes to the GG for enactment and the thing becomes law.

The pollies have next to nothing to do with regulations except those that affect their hobby horses, unfortunately, aviation ain't really one of those.

[Creampuff]

So Sunny,

CAR 206 (and its predecessor in the ANRs) slipped under the radar, and no federal politician has ever turned their mind to the problems it causes.

No federal politician has ever had a letter written to them about the problems CAR 206 causes, no one’s ever complained to the Ombudsman about the problems it causes, no report made to parliament has ever referred to it, no court or AAT decision has every turned on it, and no parliamentary committee has ever been made aware of it.

CAR 206 continues to say what it says, ad nauseum, because there’s no real pressure from the organ grinders to change it.

Arguing with and attributing blame to the CASA monkey is pointless. That’s precisely the reason the organ grinders set up CASA.

[Sunfish]

Creampuff:

So Sunny,

CAR 206 (and its predecessor in the ANRs) slipped under the radar, and no federal politician has ever turned their mind to the problems it causes.

No federal politician has ever had a letter written to them about the problems CAR 206 causes, no one’s ever complained to the Ombudsman about the problems it causes, no report made to parliament has ever referred to it, no court or AAT decision has every turned on it, and no parliamentary committee has ever been made aware of it.

CAR 206 continues to say what it says, ad nauseum, because there’s no real pressure from the organ grinders to change it.

Arguing with and attributing blame to the CASA monkey is pointless. That’s precisely the reason the organ grinders set up CASA.

That again is simply untrue Creamy. I have explained years ago on this forum exactly what happens when you write a letter to the Minister about CASA. The Minister does not respond to the complaint, CASA does.

- The Minister hands the letter to CASA and it goes right down the chain of command to the person responsible for the alleged action (or inaction) who writes the reply.

Naturally the reply tells CASA side of the story, and any arse covering required is also performed at this time. This arse covering, if severe bruising is inflicted, may involve an interview with the accusing party.

The writer also supplies the Minister with a covering brief explaining their reply, detailing any corrective action taken (or not taken) and recommending the Minister sign the letter. A copy of the brief, your letter and the Ministers reply are placed in your file at CASA and you are now officially branded as a "troublemaker".

..And I speak from experience in this matter as I've answered letters to the Premiere of Victoria and Ministers myself, as have many other public servants.

Please stop this rubbish that CASA is merely channelling the wishes of our elected representatives. All that Politicians know of aviation is the location of the Chairman's lounge, how to buckle a seatbelt and how to work the in-flight entertainment.

[Creampuff]

I know how government really works, Sunny.

I didn’t say CASA is merely channelling the wishes of your elected representatives. What I said was your elected representatives know about the problems, but don’t see any benefit to them in making CASA fix the problems.

All that politicians care about is attaining and retaining power. Fixing CAR 206, or completing the ‘reform’ of the regulations generally, isn’t going to make or break any government. That’s why the ‘reform’ is where it’s at.

[SIUYA]

Creampuff...

No federal politician has ever had a letter written to them about the problems CAR 206 causes...

Care to make a bet on that?