Barry Hempel Inquest
That's the truth but some here "can't handle the truth"
[YOUTUBE]
Blackie just bury your head in the sand mate, we'll let you know when it's all over!
ps Gotta love that scene!
Last edited by Sarcs; 16th Jun 2012 at 22:48.
Do these organisations require an AOC?
Organisations which take money to carry passengers in aircraft are carrying passengers for money in aircraft, whether or not those passengers happen to jump out of the aircraft and be members of a ‘club’ or a ‘federation’.
Organisations which take money to train pilots are taking money to train pilots, whether or not those trainees happen to be members of a ‘club’ or an ‘association’.
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Organisations which take money to carry passengers in aircraft are carrying passengers for money in aircraft, whether or not those passengers happen to jump out of the aircraft and be members of a ‘club’ or a ‘federation’.
Organisations which take money to train pilots are taking money to train pilots, whether or not those trainees happen to be members of a ‘club’ or an ‘association’.
Organisations which take money to train pilots are taking money to train pilots, whether or not those trainees happen to be members of a ‘club’ or an ‘association’.
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Organisations which take money to carry passengers in aircraft are carrying passengers for money in aircraft, whether or not those passengers happen to jump out of the aircraft and be members of a ‘club’ or a ‘federation’.
Organisations which take money to train pilots are taking money to train pilots, whether or not those trainees happen to be members of a ‘club’ or an ‘association’.
Organisations which take money to train pilots are taking money to train pilots, whether or not those trainees happen to be members of a ‘club’ or an ‘association’.
And don't even get me started on the "PPL" loophole.
There is, in my opinion, no need to “lift” safety standards.
There is, in my opinion, a chronic need to:
- interpret the existing safety standards consistently, and
- secure compliance with the existing safety standards, consistently and effectively.
There is, in my opinion, a chronic need to:
- interpret the existing safety standards consistently, and
- secure compliance with the existing safety standards, consistently and effectively.
That much, I agree with!! The answer to not enforcing existing laws is not more law ---- to also remain largely unenforced.
You have consistently made the point, in other threads over the years, the "the laws" are made by Parliament ---- quite correct, of course.
That CASA knowingly permits commercial passenger carrying operations to be carried out in circumstances for which an AOC is required (e.g. parachute operations in which punters off the street pay to be carried in aircraft) is a scandal.
If you or anybody else doesn't like the laws as enacted by Parliament, lobby for change.
That CASA knowingly permits commercial flying training operations to be carried out in circumstances for which an AOC is required (e.g. RAA Aus charging money to train its members) is a scandal.
If you or anybody else doesn't like the laws as enacted by Parliament, lobby for change.
CASA has no power to exempt anyone from the requirement for an AOC authorising operations for which an AOC is required. CASA’s job is to enforce the requirement, not turn a blind eye to it.
The AOC requirements were elevated to the Act largely as a result of several of the political backwash of several high profile Regional fatal crashes.
Many, me included, would say that the AOC amendments were very badly done, but done they were, covering a far wider range than the pollies originally. How do I know? You, for one, know.
Most of us are well aware of moves, over many years, to wind back some AOC requirements, to enable (as one example, there are others) one man flying training operations, as the FAA (and other counties) allow. The standards control is effective flight testing, as it used to be.
The demise of flying training in so many small country centers, is in large part due to the onerous AOC requirements, that have little to do with effective flying training --- onerous requirements that are financially unsustainable in micro businesses.
The very interesting point, argued yes by your former boss, was whether CASA had the power to give exemptions from provisions of the Act, by virtue of a regulation that made provision for exemptions. That is, can a regulation be used to create an exemption to it's enabling Act.
As a legal layman, my view, argued at the time, was that the answer was no, and the Act needed amendment, if that was to be the case. Your former boss successfully argued otherwise, and we have quite a few examples of what, on the face of it, are CASA using a regulation to create a provision that is, effectively, an exemption from a provision of the Act.
Organisations which take money to carry passengers in aircraft are carrying passengers for money in aircraft, whether or not those passengers happen to jump out of the aircraft and be members of a ‘club’ or a ‘federation’.
Organisations which take money to train pilots are taking money to train pilots, whether or not those trainees happen to be members of a ‘club’ or an ‘association’.
Organisations which take money to train pilots are taking money to train pilots, whether or not those trainees happen to be members of a ‘club’ or an ‘association’.
You are clearly suffering from "hire and reward" syndrome, that hasn't ever been in the "modern" Civil Aviation Act 1988, have a careful read of CAR 206, or anywhere else in the Act, where 'hire and reward" is the primary determinant for the regulations to be applied. Treatment is available, it is called application of suitable quantities of (self) education.
If you don't like the situation, including Supreme Court decisions that have, effectively, validated the arrangements, and including specific provisions of the Competition and Consume Act 2010, carried over from the Trade Practices Act 1974, authorizing waiver of liability in certain circumstances --- generically "extreme sports", where the risks cannot( effectively) be mitigated , take it up with the Minister ---- this is a rare case of bipartisan agreement between the major political parties.
It's a free world, those who want to extend the nanny state, go your hardest, you will have plenty of opposition.
Tootle pip!!
Last edited by LeadSled; 17th Jun 2012 at 03:44.
Leaddie,
Your posts are often so meandering and ambiguous, it’s very difficult to understand what you’re trying to say.
It’s true that any or all operations can be excluded from the requirement to be authorised by an AOC. Regulation 206 could be repealed, with the consequence that no purposes would be prescribed for section 27 of the CA Act, with the further consequence that no operation would be required to be authorised by an AOC. Or Reg 206 could be amended to, for example, prescribe only fare paying passenger carrying operations in Class A aircraft, in which case all other operations would not be required to be authorised by an AOC.
But neither of things has happened and, given the 'pace' of classification of operations reform, nothing substantial is likely to happen soon. (I wouldn't presume to insult snails and glaciers by using them as a metaphor.)
CASA cannot grant an exemption from the requirement for prescribed operations to be authorised by an AOC.
But you appear (on one interpretation of your blurb) to be suggesting otherwise. If that’s correct, I’d appreciate you walking me through the application, or exemption, of the AOC requirement to this scenario:
Bob’s wife Jill buys Bob a parachute jump gift card for Bob’s birthday. The cost is $500. Bob fronts at the airfield where the seller of the gift card is sitting in an aircraft with VH painted on the tail. There is no warning placard in or on the aircraft to suggest or signify anything other than that the aircraft has a ‘standard’ certificate of airworthiness.
Walk me through the rules that determine the classification of that operation. And please: forget all the Competition this and Supreme Court that cr*p. Just quote the rules.
Your posts are often so meandering and ambiguous, it’s very difficult to understand what you’re trying to say.
It’s true that any or all operations can be excluded from the requirement to be authorised by an AOC. Regulation 206 could be repealed, with the consequence that no purposes would be prescribed for section 27 of the CA Act, with the further consequence that no operation would be required to be authorised by an AOC. Or Reg 206 could be amended to, for example, prescribe only fare paying passenger carrying operations in Class A aircraft, in which case all other operations would not be required to be authorised by an AOC.
But neither of things has happened and, given the 'pace' of classification of operations reform, nothing substantial is likely to happen soon. (I wouldn't presume to insult snails and glaciers by using them as a metaphor.)
CASA cannot grant an exemption from the requirement for prescribed operations to be authorised by an AOC.
But you appear (on one interpretation of your blurb) to be suggesting otherwise. If that’s correct, I’d appreciate you walking me through the application, or exemption, of the AOC requirement to this scenario:
Bob’s wife Jill buys Bob a parachute jump gift card for Bob’s birthday. The cost is $500. Bob fronts at the airfield where the seller of the gift card is sitting in an aircraft with VH painted on the tail. There is no warning placard in or on the aircraft to suggest or signify anything other than that the aircraft has a ‘standard’ certificate of airworthiness.
Walk me through the rules that determine the classification of that operation. And please: forget all the Competition this and Supreme Court that cr*p. Just quote the rules.
Last edited by Creampuff; 17th Jun 2012 at 06:50.
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Remember Ian Lovell ????
I agree 1000% with Frank who rightly stated that:
Hempel had been a person of interest to CAA for many years.
More than 100 registered complaints - which bit of "a dodgy, doctor shopping egomanic" did CASA NOT understand??
They failed to act on compelling evidence given to them. See above
They are responsible for the tragedy. Clearly
They are "The Watchdog's on duty". see above, and what about Lockhart River ???
If the "watchdog is not capable it should be shot and replaced with a more competent dog. obviously
Hempel was just being Barry. and according to the investigator, "a dodgy, doctor shopping egomanic"
He should have had his wings clipped many years prior to this debacle.
NOT by CASA, they were the three "wise" monkeys - see NO evil, hear no evil, do NOTHING at all.
Hempel had been a person of interest to CAA for many years.
More than 100 registered complaints - which bit of "a dodgy, doctor shopping egomanic" did CASA NOT understand??
They failed to act on compelling evidence given to them. See above
They are responsible for the tragedy. Clearly
They are "The Watchdog's on duty". see above, and what about Lockhart River ???
If the "watchdog is not capable it should be shot and replaced with a more competent dog. obviously
Hempel was just being Barry. and according to the investigator, "a dodgy, doctor shopping egomanic"
He should have had his wings clipped many years prior to this debacle.
NOT by CASA, they were the three "wise" monkeys - see NO evil, hear no evil, do NOTHING at all.
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Apart from standing guard out front of the flying school just in case Barry was to commit an offence, with only 7 GA FOI's in the Brisbane office, how could they have stopped this flight or others like it?
This is a man with complete disregard for rules, both aviation and the laws of criminality!
I'm confused!
This is a man with complete disregard for rules, both aviation and the laws of criminality!
I'm confused!
But the key difference, DB, is that CASA was on notice of this person’s attitude and activities. For a very long time.
I suppose I’d ask a different question: If CASA does not have a sufficient combination of resources, expertise and strategic resource-allocation management flexibility to stop a person like this, before an innocent person is killed, when CASA has a mountain of evidence (much of it generated by CASA) to support constraint of this person’s activities, shouldn’t someone be alerting the public of that fact?
In other words, if it’s true that the lives of members of the public might continue to be placed in the hands of persons known by the safety regulator to have a history of safety rule breaking and safety-related medical conditions, isn’t the public entitled to know that?
The advice I give to friends and members of my family is: don’t fly in any aircraft with fewer than 40 seats in Australia. I find it sad that I have to give that advice. But on what basis should I be confident that aircraft with fewer than those seats are the subject of any proper regulatory surveillance and compliance activity in Australia?
I suppose I’d ask a different question: If CASA does not have a sufficient combination of resources, expertise and strategic resource-allocation management flexibility to stop a person like this, before an innocent person is killed, when CASA has a mountain of evidence (much of it generated by CASA) to support constraint of this person’s activities, shouldn’t someone be alerting the public of that fact?
In other words, if it’s true that the lives of members of the public might continue to be placed in the hands of persons known by the safety regulator to have a history of safety rule breaking and safety-related medical conditions, isn’t the public entitled to know that?
The advice I give to friends and members of my family is: don’t fly in any aircraft with fewer than 40 seats in Australia. I find it sad that I have to give that advice. But on what basis should I be confident that aircraft with fewer than those seats are the subject of any proper regulatory surveillance and compliance activity in Australia?
In other words, if it’s true that the lives of members of the public might continue to be placed in the hands of persons known by the safety regulator to have a history of safety rule breaking and safety-related medical conditions, isn’t the public entitled to know that?
Whether this is due to having to be always 'politically correct' or their bosses being politically savvy, it has become totally unworkable and the system needs a serious overhaul...from bush operator, to jet jockey, to airlines big and small the clock is ticking!
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I suppose I’d ask a different question: If CASA does not have a sufficient combination of resources, expertise and strategic resource-allocation management flexibility to stop a person like this, before an innocent person is killed, when CASA has a mountain of evidence (much of it generated by CASA) to support constraint of this person’s activities, shouldn’t someone be alerting the public of that fact?
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LeadSled, please reread my post. I assure you my tounge is very firmly in cheek.
It's a sad world when someone who proposes Cessnas should be treated the same as 747s gets taken seriously.
It's a sad world when someone who proposes Cessnas should be treated the same as 747s gets taken seriously.
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It makes you realize that if CASA won't arrange to have a renegade CPL locked up for this type of activity, they will not likely go near the renegade PPL's either and there are plenty of them out there doing dodgeys as well....
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Agreed, VH-XXX.
Maybe not that particular flight, but there were others. Couldn't they have prosecuted him for breaches? Stopped him from advertising? Shut him down?
Honest question because I'm not overly familiar with the Act, but if there's no provision to prosecute a rogue operator then it's not worth the paper it's written on and CASA are not a regulator.
A regulatory body's duties are to maintain compliance to a legislated standard and enforce the regulations as required, by whatever legal means necessary. From what you see in the real world and read on here (and other places) CASA have been more than happy to pursue other operators in the past with much vim and vigour, allegedly sometimes for nothing more than paperwork violations.
Why was this operator different?
If a regulator is unable or unwilling to regulate then it is nothing more than a drain on the Commonwealth budget. It achieves nothing and serves no purpose.
Apart from standing guard out front of the flying school just in case Barry was to commit an offence, with only 7 GA FOI's in the Brisbane office, how could they have stopped this flight or others like it?
Honest question because I'm not overly familiar with the Act, but if there's no provision to prosecute a rogue operator then it's not worth the paper it's written on and CASA are not a regulator.
A regulatory body's duties are to maintain compliance to a legislated standard and enforce the regulations as required, by whatever legal means necessary. From what you see in the real world and read on here (and other places) CASA have been more than happy to pursue other operators in the past with much vim and vigour, allegedly sometimes for nothing more than paperwork violations.
Why was this operator different?
If a regulator is unable or unwilling to regulate then it is nothing more than a drain on the Commonwealth budget. It achieves nothing and serves no purpose.
Last edited by Worrals in the wilds; 17th Jun 2012 at 12:58.
If a regulator is unable or unwilling to regulate then it is nothing more than a drain on the Commonwealth budget. It achieves nothing and serves no purpose.
Worrals may I suggest that it has been 'thus' for over a quarter of a century. It can be argued that this maybe due to a cumbersome suite of regulations severely in need of a rewrite, however all anyone in the industry really wants is consistency!
Most industry stakeholders can accept the draconian regs as long as there is consistency in how they are enforced (or not enforced). It is the double standards, apparent kickbacks, Hempel v Quaddrio, Jet* v Tiger, apparent coronial cover-ups, denials, fear of retribution, obfuscation etc..etc the list is almost endless!
This is what is 'beyond the pale' and slowly suffocating the Australian industry and (dare I say it) killing people!
Last edited by Sarcs; 17th Jun 2012 at 21:19.
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Protected Species - Hempel crash, Ian Lovell
WitW
you well might have hit the proverbial nail on the (not Barry's) head.
if
Hempel did in fact train a whole generation pf pilots (including certain CASA staff), and was allowed to continue doing so AFTER he had his CPL cancelled, does this mean that all those certifications might actually be invalid?
Does this mean that there are a whole group of pilots
who might now not be licenced for what they think they should be ???
I wonder if the insurance companies might not now take a close interest in which policies
should be voided ?
could CASA be covering its backside ??
YOU BET !!
you well might have hit the proverbial nail on the (not Barry's) head.
if
Hempel did in fact train a whole generation pf pilots (including certain CASA staff), and was allowed to continue doing so AFTER he had his CPL cancelled, does this mean that all those certifications might actually be invalid?Does this mean that there are a whole group of pilots
who might now not be licenced for what they think they should be ???I wonder if the insurance companies might not now take a close interest in which policies
should be voided ?could CASA be covering its backside ??
YOU BET !!
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Good point Macroderma!!!
I believe all endorsements obtained by BH should be revoked by CASA?
The insurance company should make it part of their policy that all endorsements certified by BH must be re endorsed by a CFI.
I believe all endorsements obtained by BH should be revoked by CASA?
The insurance company should make it part of their policy that all endorsements certified by BH must be re endorsed by a CFI.
From the Willowbank Coronial:
[Bolding added, other than to headings]
The application of the existing regime to tandem parachuting
Self evidently, the requirement for an aviation operation to have an AOC has crucial safety ramifications. It is determined by whether the activities engaged in by the air operator come within any of the “commercial purposes” set out in CAR206 which delineates the prescribed purposes referred to in s27 of the CAA. That regulation specifies three general categories of aviation activity that it lists and defines by description and example. The three broad categories are aerial work, charter purposes and regular public transport.
In so far as is relevant to this case, “charter purposes” include “the carriage of passengers or cargo for hire or reward to or from any place”. The ATSB report notes in 1999 the CASA board considered the ambit of CAR206 and apparently determined that “the aircraft operation aspect of commercial parachuting should be excluded from the AOC requirement in CAR206”. However no change was made to the legislation or to the CAR as a result of this determination. Rather it seems that this was a policy or an administrative understanding that has henceforth applied.
[CP comment: So, the regulator chose to ignore the law from then on.]
As the evidence in this inquest clearly establishes, CASA does not view the conduct of flights for the purpose of transporting parachutists as constituting a prescribed purpose under s27, and therefore does not require such operations to be conducted by the holder of an AOC. In the evidence of its officers to the inquest and its submissions, CASA contends that all of the people in the incident aircraft were “participants” in a recreational aviation activity.
Counsel assisting helpfully sets out in his submissions some relevant authorities. The South Australian Supreme Court in Chegwidden v White interpreted legislation which preceded the CAA but contained the same definition of charter operations as quoted above. The court held that an aircraft operator who provides a customer with a number of different services in return for a single overall charge, carries those passengers “for hire or reward” if one of those services is carriage as a passenger in an aircraft. The court emphasised it is the substance of the arrangement, not the form of it that is decisive: “the way the parties choose to dress up the arrangement, even with the best of motives, cannot be conclusive”.
Cox J observed; “If there is any ambiguity about it, the court should bear in mind that the evident purpose of the regulation in this respect is to promote air safety – higher qualifications are needed for a commercial pilot licence (as are now for an AOC) – and should give the regulations a liberal and remedial construction.”
The evidence in this case shows that customers of the Brisbane Skydiving Centre were charged a single fee for a tandem parachute jump. The fee included temporary membership of the APF, the provision of parachuting equipment, a pre-flight briefing from a parachuting instructor, the services of a tandem master and carriage in an aircraft to reach the jump height.
I have no doubt that part of the fee paid by tandem jumpers is for the air carriage to the jump height - this is why they are charged more if they jump from higher. Accordingly I am of the view a court could conclude tandem jumpers are passengers carried for reward and CASA has misinterpreted the legislation when determining such activities can be carried on without an AOC.
While the reasons for CASA’s policy approach cannot override the law, they are relevant to the consideration of which should be changed: the policy or the law. I will therefore examine CASA’s explanation of its policy position.
A CASA officer, Robert Glen, gave evidence that he is responsible for oversighting self administered aviation recreational activities such as hang-gliding, parachuting and ultra light aircraft. He said “it remains the policy of CASA to classify parachute operations as private and regulate them in accordance with CASA’s policy regarding industry sector priorities and classification of civil aviation activities”. Under that policy CASA distinguishes and prioritises the deployment of its resources in descending order with regard to the protection of “passengers, task specialists, and thirdly participants” respectively. According to Mr Glen “parachutists fall within the category of participants as occupants of aircraft who voluntarily engage in an aviation activity, who are informed of the risks and have explicitly accepted the risks of their involvement in that activity”. He suggested this was appropriate because they are “members of an organisation” which has the capacity to inform its members of the risks of their sport and to manage those risks.
CASA provides limited funding to organisations involved in self administered recreation activities, in this case the APF, to discharge a number of responsibilities in relation to the oversighting of the activities concerned. However, Mr Glen indicated CASA “never understood these obligations to extend to the examination by the APF of the manner in which an aircraft engaged in a parachute operation has been maintained or operated”. As indicated below, Mr Glen’s appreciation of the limited nature of the APF’s oversight of operators is accurate.
I am of the view this policy is seriously flawed. It is based on a false assumption that the passengers in the incident aircraft were in a position to inform themselves of the risk in participating in the activities advertised and offered by the Brisbane Skydiving Centre. The people who responded to the advertisements offering tandem parachute jumps were not in any position to assess whether the Brisbane Skydiving Centre operated in accordance with safety requirements that would apply to a commercial organisation or something significantly less; they had no interest in or regard to whether part of the fee they paid was used to sign them up as temporary members of the APF, and in any event, the APF did not exercise any oversight role in relation to the aviation aspects of the business.
I have no doubt members of the public would assume that a business advertising tandem sky diving freely available to the public without any significant training or testing was subject to the same regulations as a business offering, say, joy flights.
While members of the public wishing to engage in tandem parachuting can be expected to make their own assessment of the risk of jumping out of a plane while harnessed to a tandem master, they cannot in my view be expected to assess the suitability of the plane, the modifications that may have been made to it, the competency of the pilot or any other aviation issue to any greater extent than can a passenger chartering a light plane to fly him or her to a destination. I can see no valid basis on which CASA can suggest that a distinction between “passengers” and “participants” in these circumstances provides a reasonable basis for absolving itself from any responsibility for oversighting such operations.
[CP comment: in other words, the coroner’s view is that the law should be enforced, not changed in accordance with a patently flawed ‘policy’ decision of the regulator made in 1999.]
Further, as CASA does not consider that the APF has any role in examining the manner in which the aircraft engaged in parachuting was maintained or operated, nor of ensuring that those who take up publicly advertised services are informed of the risks, I am unable to comprehend the basis on which it concludes it need play no role in oversighting these aspects of publicly advertised and offered tandem parachuting, involving as it does carriage for reward.
In its submissions, CASA explains the need to apply a descending order of priority to its oversight of “passengers”, “task specialists” and “participants” as a result of it having limited resources and the Government’s requirement that it focus primarily on passenger safety. This is understandable. It is however inconsistent with its submission to the effect that the classification of the parachuting as a “private operation” and the fare paying passengers as “participants” does not expose those passengers to greater risk.
…
Conclusions
A court could conclude the occupants of the incident aircraft, other than the pilot and the tandem masters, were passengers who were to be carried for reward from the airstrip to the jump site. Accordingly, I consider CASA misapplied the provisions of the CAA s27 and CAR206 when it concluded that the Brisbane Skydiving Centre and other similar operators could offer tandem jumps to members of the public without holding an AOC.
Self evidently, the requirement for an aviation operation to have an AOC has crucial safety ramifications. It is determined by whether the activities engaged in by the air operator come within any of the “commercial purposes” set out in CAR206 which delineates the prescribed purposes referred to in s27 of the CAA. That regulation specifies three general categories of aviation activity that it lists and defines by description and example. The three broad categories are aerial work, charter purposes and regular public transport.
In so far as is relevant to this case, “charter purposes” include “the carriage of passengers or cargo for hire or reward to or from any place”. The ATSB report notes in 1999 the CASA board considered the ambit of CAR206 and apparently determined that “the aircraft operation aspect of commercial parachuting should be excluded from the AOC requirement in CAR206”. However no change was made to the legislation or to the CAR as a result of this determination. Rather it seems that this was a policy or an administrative understanding that has henceforth applied.
[CP comment: So, the regulator chose to ignore the law from then on.]
As the evidence in this inquest clearly establishes, CASA does not view the conduct of flights for the purpose of transporting parachutists as constituting a prescribed purpose under s27, and therefore does not require such operations to be conducted by the holder of an AOC. In the evidence of its officers to the inquest and its submissions, CASA contends that all of the people in the incident aircraft were “participants” in a recreational aviation activity.
Counsel assisting helpfully sets out in his submissions some relevant authorities. The South Australian Supreme Court in Chegwidden v White interpreted legislation which preceded the CAA but contained the same definition of charter operations as quoted above. The court held that an aircraft operator who provides a customer with a number of different services in return for a single overall charge, carries those passengers “for hire or reward” if one of those services is carriage as a passenger in an aircraft. The court emphasised it is the substance of the arrangement, not the form of it that is decisive: “the way the parties choose to dress up the arrangement, even with the best of motives, cannot be conclusive”.
Cox J observed; “If there is any ambiguity about it, the court should bear in mind that the evident purpose of the regulation in this respect is to promote air safety – higher qualifications are needed for a commercial pilot licence (as are now for an AOC) – and should give the regulations a liberal and remedial construction.”
The evidence in this case shows that customers of the Brisbane Skydiving Centre were charged a single fee for a tandem parachute jump. The fee included temporary membership of the APF, the provision of parachuting equipment, a pre-flight briefing from a parachuting instructor, the services of a tandem master and carriage in an aircraft to reach the jump height.
I have no doubt that part of the fee paid by tandem jumpers is for the air carriage to the jump height - this is why they are charged more if they jump from higher. Accordingly I am of the view a court could conclude tandem jumpers are passengers carried for reward and CASA has misinterpreted the legislation when determining such activities can be carried on without an AOC.
While the reasons for CASA’s policy approach cannot override the law, they are relevant to the consideration of which should be changed: the policy or the law. I will therefore examine CASA’s explanation of its policy position.
A CASA officer, Robert Glen, gave evidence that he is responsible for oversighting self administered aviation recreational activities such as hang-gliding, parachuting and ultra light aircraft. He said “it remains the policy of CASA to classify parachute operations as private and regulate them in accordance with CASA’s policy regarding industry sector priorities and classification of civil aviation activities”. Under that policy CASA distinguishes and prioritises the deployment of its resources in descending order with regard to the protection of “passengers, task specialists, and thirdly participants” respectively. According to Mr Glen “parachutists fall within the category of participants as occupants of aircraft who voluntarily engage in an aviation activity, who are informed of the risks and have explicitly accepted the risks of their involvement in that activity”. He suggested this was appropriate because they are “members of an organisation” which has the capacity to inform its members of the risks of their sport and to manage those risks.
CASA provides limited funding to organisations involved in self administered recreation activities, in this case the APF, to discharge a number of responsibilities in relation to the oversighting of the activities concerned. However, Mr Glen indicated CASA “never understood these obligations to extend to the examination by the APF of the manner in which an aircraft engaged in a parachute operation has been maintained or operated”. As indicated below, Mr Glen’s appreciation of the limited nature of the APF’s oversight of operators is accurate.
I am of the view this policy is seriously flawed. It is based on a false assumption that the passengers in the incident aircraft were in a position to inform themselves of the risk in participating in the activities advertised and offered by the Brisbane Skydiving Centre. The people who responded to the advertisements offering tandem parachute jumps were not in any position to assess whether the Brisbane Skydiving Centre operated in accordance with safety requirements that would apply to a commercial organisation or something significantly less; they had no interest in or regard to whether part of the fee they paid was used to sign them up as temporary members of the APF, and in any event, the APF did not exercise any oversight role in relation to the aviation aspects of the business.
I have no doubt members of the public would assume that a business advertising tandem sky diving freely available to the public without any significant training or testing was subject to the same regulations as a business offering, say, joy flights.
While members of the public wishing to engage in tandem parachuting can be expected to make their own assessment of the risk of jumping out of a plane while harnessed to a tandem master, they cannot in my view be expected to assess the suitability of the plane, the modifications that may have been made to it, the competency of the pilot or any other aviation issue to any greater extent than can a passenger chartering a light plane to fly him or her to a destination. I can see no valid basis on which CASA can suggest that a distinction between “passengers” and “participants” in these circumstances provides a reasonable basis for absolving itself from any responsibility for oversighting such operations.
[CP comment: in other words, the coroner’s view is that the law should be enforced, not changed in accordance with a patently flawed ‘policy’ decision of the regulator made in 1999.]
Further, as CASA does not consider that the APF has any role in examining the manner in which the aircraft engaged in parachuting was maintained or operated, nor of ensuring that those who take up publicly advertised services are informed of the risks, I am unable to comprehend the basis on which it concludes it need play no role in oversighting these aspects of publicly advertised and offered tandem parachuting, involving as it does carriage for reward.
In its submissions, CASA explains the need to apply a descending order of priority to its oversight of “passengers”, “task specialists” and “participants” as a result of it having limited resources and the Government’s requirement that it focus primarily on passenger safety. This is understandable. It is however inconsistent with its submission to the effect that the classification of the parachuting as a “private operation” and the fare paying passengers as “participants” does not expose those passengers to greater risk.
…
Conclusions
A court could conclude the occupants of the incident aircraft, other than the pilot and the tandem masters, were passengers who were to be carried for reward from the airstrip to the jump site. Accordingly, I consider CASA misapplied the provisions of the CAA s27 and CAR206 when it concluded that the Brisbane Skydiving Centre and other similar operators could offer tandem jumps to members of the public without holding an AOC.
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Bak-sheesh.
This is debate not essentially about policy or law the counter arguments and rebuttals have been done, dusted and passed into the historical apathy of the industry. Phelan did a piece as did we all here on Pprune, Reg 206 is bad law (He who must not be shamed) and SM Fyce agreed (bless him).
Phelan.
Fyce
This debate should encompass:-
And the differences between the hammering John Quadrio, Max Davies and several others have received for much less heinous alleged (that's unproven, hearsay etc.) crimes than considered here.
Why was this situation allowed to continue, unchecked, unshriven and in the face of law and logic??.
Phelan.
Fyce
This debate should encompass:-
Australian - Official documents show that CASA even let Hempel maintain his private pilot aeroplane licence to conduct endorsement training of other aviators, despite 13 fresh convictions under the Civil Aviation Act, and a CASA finding in November 2007 that stated "you have a long established record of breaking the law relevant to aviation safety which is indicative of an intrinsic lack of honesty and integrity which is incompatible with you being entrusted with flight crew licences ... your record of motor vehicle-related offences as well as the aviation-related offences indicates a flagrant disregard by you of safety matters ... your actions indicate an inappropriate attitude to legal authority, and a flagrant disregard to the collective requirements of safety systems ... (you are) an unacceptable risk to recidivism that threatens aviation safety". Hedley Thomas. See post #107 this thread.
Why was this situation allowed to continue, unchecked, unshriven and in the face of law and logic??.
Last edited by Kharon; 18th Jun 2012 at 03:44.