Pudniks and CASA [2021/5950]
Unfortunately we can’t see your attachment as you are new here and need to have made more posts.
If that organisation is set up specifically to avoid complience with the GFA rules, as was the specific case I mentioned in skydiving, it's not exactley a boon to saftey, is it?
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equally, i might ask if safety is served by a SAFA monopoly, where all my mates are too scared to reply to my emails for fear of being “banned for no reason” too. is that a good safety culture where pilots feel supported to raise any concerns?
PS. i have confirmed under FOI that key CASA staff are members of SAFA, but have not signed a conflict of interest statement. if they were to approve my P149, they too could lose their PG licence for “no reason” and ironically CASA could do nothing about it :o
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The AAT isn’t concerned about misfeasance and bad faith. It’s interested in whether your application satisfies the criteria for the grant of a Part 149 approval. You should focus on those criteria and showing the AAT that they are satisfied.
CASA will use whatever tactics they can to delay and put you in as bad a light as possible. Welcome to the party.
para 95 … Each of those contraventions was, in the Tribunal's opinion, merely a trivial, technical contravention and, taken individually or collectively, warranted no more than counselling action by CASA. In these circumstances cancellation of the applicant's pilot licence, thereby jeopardising his aviation business and livelihood, can only be regarded as grossly excessive and unreasonable and, therefore, highly inappropriate.
Repacholi and Civil Aviation Safety Authority [2003] AATA 573 (18 June 2003)
Last edited by skinduptruk; 15th Dec 2021 at 05:47. Reason: fix url
I get that the symbiosis between CASA and organisations like GFA is a very cosy one. But it is patent nonsense to suggest that it follows that no other organisation could achieve the same or better outcomes operating concurrently with GFA. The question is whether the rules and systems of the other organisation deliver the same or better outcomes. That's what all those pages in Part 149 are about, surely...
CASA told me they cannot control SAFA until they do become P149 valid. a tricky situation!
The current exemption relevant to you (CAO 95.8) was issued by CASA - the most recent version was issued by Ms Spence on 20 Nov 2021. That exemption can be changed. That exemption operates by reference to a "relevant sport aviation body". Guess who decides whether or not a body is a "sport aviation body" for the purposes of the aviation rules? If a body is 'out of control' it can be dealt with. CASA just repeals its status as a sport aviation body for the purposes of the aviation rules. It's actually CASA's job to keep them under control.
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9 Jun 20
Sport Aviation Operations Officer
General, Recreational and Sport Aviation Branch
CASA\Stakeholder Engagement Group
OFFICIAL
Hi Kurt,
A review of the communications that you have Cc’d to CASA Sport has been undertaken.
It has been noted that a significant proportion of the email content appears to be related to an ongoing dispute between yourself and other SAFA members and/or SAFA staff. Please note that CASA’s functions as defined in Section 9 the Civil Aviation Act 1988 relate to the safety of air navigation, they do not however extend to dispute resolution.
For clarity regarding the current structure of the civil aviation legislation relating to sport aviation; the only lawful manner of operating a paraglider or hang glider within Australian territory is by adherence to all requirements contained in Civil Aviation Order (CAO) 95.8. The effect and purpose of CAO 95.8 is to grant particular exemptions (in defined instances) from the legal requirements as specified in the Civil Aviation Act (CAA) 1988, the Civil Aviation Regulations (CAR) 1988 and the Civil Aviation Safety Regulations (CASR) 1998.
For example, the CAA requires that all civil aircraft hold registration (CAA 20AA refers) and all pilots of aircraft be licenced (a licence issued under CASR Part 61 or foreign equivalent) (CAA 20AB refers). The operation of an aircraft outside of these requirements is an offence against the Act which bears serious penalties, including possible imprisonment. CAO 95.8 affords the only means of enabling compliant participation in paragliding and hang gliding in Australia.
For the avoidance of doubt; any person wishing to operate a paraglider or hang glider in Australia lawfully must operate in accordance with the requirements of CAO 95.8. Relevant provisions from CAO 95.8 are provided for information;
4 Licence not required
4.1 For section 20AB of the Act, a person is authorised to perform a duty essential to the operation of an aircraft to which this Order applies without holding a flight crew licence if he or she complies with the conditions set out in subsections 6 and 7.
5 Aircraft not required to be registered
For paragraph 20AA (1) (b) of the Act, an aircraft, to which this Order applies, is not required to be registered under CAR 1988 when it is flown in accordance with the conditions set out in subsections 6 and 7.
6 General conditions
6.6 An aircraft to which this Order applies must be operated in accordance with the rules, regulations and directions made by the HGFA for the operation of such aircraft and specified in the HGFA Operations Manual or in any other manual or document of the HGFA.
(Note: SAFA and HGFA are one and the same entity for the purpose of the civil aviation legislation.)
CASA’s current regulatory relationship with SAFA members is by means of the approved SAFA Operations Manual (current CASA Approved version is V20180427) which contains the operational aviation requirements including SAFA’s oversight of an approved system of training and certification (not licencing) of paraglider and hang glider pilots. The scope of the Operations Manual does not include member complaints, behavioural misconduct of members, disciplinary procedures of the organisation, etc. These matters are therefore outside of CASA’s remit and there is no regulatory means currently for CASA to review disciplinary decisions made by SAFA.
CASA Sport Aviation understands that you are a current financial SAFA member. Therefore:
I trust this explains the current regulatory sport aviation scheme.
Please refrain from forwarding emails to CASA that relate to membership issues/disputes or disciplinary matters currently being undertaken by SAFA. Should you identify specific regulatory issues in the future that are within CASA remit please make email contact via (sport email).
Sport Aviation Operations Officer
General, Recreational and Sport Aviation Branch
CASA\Stakeholder Engagement Group
OFFICIAL
Hi Kurt,
A review of the communications that you have Cc’d to CASA Sport has been undertaken.
It has been noted that a significant proportion of the email content appears to be related to an ongoing dispute between yourself and other SAFA members and/or SAFA staff. Please note that CASA’s functions as defined in Section 9 the Civil Aviation Act 1988 relate to the safety of air navigation, they do not however extend to dispute resolution.
For clarity regarding the current structure of the civil aviation legislation relating to sport aviation; the only lawful manner of operating a paraglider or hang glider within Australian territory is by adherence to all requirements contained in Civil Aviation Order (CAO) 95.8. The effect and purpose of CAO 95.8 is to grant particular exemptions (in defined instances) from the legal requirements as specified in the Civil Aviation Act (CAA) 1988, the Civil Aviation Regulations (CAR) 1988 and the Civil Aviation Safety Regulations (CASR) 1998.
For example, the CAA requires that all civil aircraft hold registration (CAA 20AA refers) and all pilots of aircraft be licenced (a licence issued under CASR Part 61 or foreign equivalent) (CAA 20AB refers). The operation of an aircraft outside of these requirements is an offence against the Act which bears serious penalties, including possible imprisonment. CAO 95.8 affords the only means of enabling compliant participation in paragliding and hang gliding in Australia.
For the avoidance of doubt; any person wishing to operate a paraglider or hang glider in Australia lawfully must operate in accordance with the requirements of CAO 95.8. Relevant provisions from CAO 95.8 are provided for information;
4 Licence not required
4.1 For section 20AB of the Act, a person is authorised to perform a duty essential to the operation of an aircraft to which this Order applies without holding a flight crew licence if he or she complies with the conditions set out in subsections 6 and 7.
5 Aircraft not required to be registered
For paragraph 20AA (1) (b) of the Act, an aircraft, to which this Order applies, is not required to be registered under CAR 1988 when it is flown in accordance with the conditions set out in subsections 6 and 7.
6 General conditions
6.6 An aircraft to which this Order applies must be operated in accordance with the rules, regulations and directions made by the HGFA for the operation of such aircraft and specified in the HGFA Operations Manual or in any other manual or document of the HGFA.
(Note: SAFA and HGFA are one and the same entity for the purpose of the civil aviation legislation.)
CASA’s current regulatory relationship with SAFA members is by means of the approved SAFA Operations Manual (current CASA Approved version is V20180427) which contains the operational aviation requirements including SAFA’s oversight of an approved system of training and certification (not licencing) of paraglider and hang glider pilots. The scope of the Operations Manual does not include member complaints, behavioural misconduct of members, disciplinary procedures of the organisation, etc. These matters are therefore outside of CASA’s remit and there is no regulatory means currently for CASA to review disciplinary decisions made by SAFA.
CASA Sport Aviation understands that you are a current financial SAFA member. Therefore:
- For a current SAFA member whose flight privileges have been suspended, SAFA’s disciplinary procedures apply. Noting that - Should a person undertake to operate a paraglider or hang glider while not holding SAFA membership, (i.e. no regulatory relationship existing between the person and SAFA), the situation would fall under the remit of CASA. Should this situation occur, it would be managed in accordance with the CASA Coordinated Enforcement Process as outlined in the Coordinated Enforcement Manual (casa.gov.au/publications-and-resources/publication/enforcement-manual).
- For a current SAFA member involved in a dispute with the SAFA organisation, CASA has no civil aviation legislative or regulatory ability to interfere or interject. Other avenues which may be more appropriate to explore are dispute resolution services.
I trust this explains the current regulatory sport aviation scheme.
Please refrain from forwarding emails to CASA that relate to membership issues/disputes or disciplinary matters currently being undertaken by SAFA. Should you identify specific regulatory issues in the future that are within CASA remit please make email contact via (sport email).
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CASA stated they do not interfere when SAFA acts unlawfully. Hence my “dispute” with SAFA.
The icing on the cake was when CASA said due to my dispute with SAFA, CASA refused to review my P149 paperwork (see what CASA did there - how cute). That was a bridge too far. So I took CASA to the AAT for a review of that particular decision.
PS. To pass the time, I have asked CASA freedom of information (FOI) for a copy of all PG accident reports (or accident investigation reports) that SAFA provides to CASA. The initial CASA reply has been to suggest that CASA does not hold such data. If true, then SAFA really is left to run things without oversight. The FOI officer hinted that if I were to persist with requests for safety reports, my request could be deemed vexatious. My reply was that I would enjoy a situation where CASA tried to justify denying access to basic safety reports. So it seems the adversarial CASA culture goes all the way to the core, even for basic safety report matters. I remain hopeful the new CEO can address the current CASA culture problems.
PPS. Currently only RAAus + APF are P149 ASAOs (and maybe the gliders too). I note an ABC news item about a review of parachute operations. Here is most of the link: Husband whose wife died in Mission Beach skydiving accident launches legal action - ABC News. http://www.abc.net.au/news/2021-09-0...eath/100447064
id be happy to attach my full P149 paperwork eg my paragliding operations manual (PGOM) + risk logs as the heart of the safety management system (SMS) when i know this forum system better and get extra post privileges etc. then you can judge for yourself
equally, i might ask if safety is served by a SAFA monopoly, where all my mates are too scared to reply to my emails for fear of being “banned for no reason” too. is that a good safety culture where pilots feel supported to raise any concerns?
PS. i have confirmed under FOI that key CASA staff are members of SAFA, but have not signed a conflict of interest statement. if they were to approve my P149, they too could lose their PG licence for “no reason” and ironically CASA could do nothing about it :o
equally, i might ask if safety is served by a SAFA monopoly, where all my mates are too scared to reply to my emails for fear of being “banned for no reason” too. is that a good safety culture where pilots feel supported to raise any concerns?
PS. i have confirmed under FOI that key CASA staff are members of SAFA, but have not signed a conflict of interest statement. if they were to approve my P149, they too could lose their PG licence for “no reason” and ironically CASA could do nothing about it :o
I get that the symbiosis between CASA and organisations like GFA is a very cosy one. But it is patent nonsense to suggest that it follows that no other organisation could achieve the same or better outcomes operating concurrently with GFA. The question is whether the rules and systems of the other organisation deliver the same or better outcomes. That's what all those pages in Part 149 are about, surely...
Well it depends upon what you mean by "discipline". My experience and observation is that these organisations are as much about personalities and egos and strong opinions and factions and pettiness and vindictiveness as they are about the objective interests of the people 'regulated' and safety. A lot like CASA, really.
If the 'discipline' is objectively necessary and proportionate to some risk, confirmed by external merits review if the person subject to it chooses to seek a review, that's fine. The folks who aren't amenable to that kind of discipline are going to smear themselves across a hillside in any event. And I doubt whether they'd be able to convince CASA that the proposed new organisation has the competence and capacity to join the cosy symbiosis.
If the 'discipline' is objectively necessary and proportionate to some risk, confirmed by external merits review if the person subject to it chooses to seek a review, that's fine. The folks who aren't amenable to that kind of discipline are going to smear themselves across a hillside in any event. And I doubt whether they'd be able to convince CASA that the proposed new organisation has the competence and capacity to join the cosy symbiosis.
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good question. the issue is "for safety breaches".
atm SAFA can strip licences based on "bringing the sport, the club, or yourself into disrepute". how is that judged exactly? kangaroo court.
imho clubs should only ban members who have (real) court findings against them. atm clubs are jumping the gun (imho). the Aus Constitution suggests only a court shall decide freedoms.
anyone should be entitled to apply to start a Part 149 org. with approvals subject to the requirements being met. to be frank, it's quite clear that CASA has zero genuine interest in allowing new players into the P149 space. CASA use the fit and proper person excuse with no definitions to be seen.
read the new P149 regs, where CASA can use "any means" to regulate clubs. blackmail, stalking, soliciting comments from people with other agendas (biz competitors) etc. it seems CASA always wants to push the absolute limits of unlawful conduct in pursuit of ever more "safety" goals. the concepts of Rule of Law and Aus Constitution seem to get forgotten outright. why does Senate estimates allow such CASA conduct to be possible, if not probable? my theory - it serves as a test case of what Aus citizens will tolerate, and what the courts can and/or will do about it to push back. it used to be called justice.
PS. i wrote a letter to Pip Spence the new CASA CEO. i can post it next. it got blocked by the staff due to my being a "potential criminal" given the indefinite CASA investigations. so we can see how CASA paints themself into a corner and simply does not care nor listen to industry or recreational sports people.
atm SAFA can strip licences based on "bringing the sport, the club, or yourself into disrepute". how is that judged exactly? kangaroo court.
imho clubs should only ban members who have (real) court findings against them. atm clubs are jumping the gun (imho). the Aus Constitution suggests only a court shall decide freedoms.
anyone should be entitled to apply to start a Part 149 org. with approvals subject to the requirements being met. to be frank, it's quite clear that CASA has zero genuine interest in allowing new players into the P149 space. CASA use the fit and proper person excuse with no definitions to be seen.
read the new P149 regs, where CASA can use "any means" to regulate clubs. blackmail, stalking, soliciting comments from people with other agendas (biz competitors) etc. it seems CASA always wants to push the absolute limits of unlawful conduct in pursuit of ever more "safety" goals. the concepts of Rule of Law and Aus Constitution seem to get forgotten outright. why does Senate estimates allow such CASA conduct to be possible, if not probable? my theory - it serves as a test case of what Aus citizens will tolerate, and what the courts can and/or will do about it to push back. it used to be called justice.
PS. i wrote a letter to Pip Spence the new CASA CEO. i can post it next. it got blocked by the staff due to my being a "potential criminal" given the indefinite CASA investigations. so we can see how CASA paints themself into a corner and simply does not care nor listen to industry or recreational sports people.
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letter to DAS/CEO Pip Spence re CASA engagement and listening (14 Sep 21)
TO: Director of Aviation Safety, Pip Spence, CEO CASA.
***
Good afternoon Pip,
I have been reading up extensively on the 30 year history of CASA nee CAA in general aviation matters.
I sincerely wish you well on the transformative culture change that is clearly desperately required.
I also read your recent briefing to industry and I have formatted my letter as a response to your briefing (please find your text in green below).
I have made it clear to everyone in CASA that a key part of our job is engagement and listening.
CASA Investigators called me up and made allegations of illegal flying. They refused to identify their qualifications, or legal powers to do so, or the process ahead. By contrast, CASA Investigators ignore the unlawful behaviour of SAFA at every turn. I made a complaint to your ICC and his initial weak finding was that "I did not rely on the information and views of CASA". When I clarified the issue further, your ICC is so slow to investigate (currently underway on this issue), he is practically useless.
We must have effective and productive working relationships with people and organisations across all sectors of Australian aviation so that we engage on issues in a timely and meaningful way.
CASA has taken over 12 months to stall their review of my 20 page document for Part 149 self administering organisations (SAO). Faced with pressure to do something after one year, CASA now outright refuses to review my paperwork, having deemed the pending CDPP investigation "relevant" for some reason. So much for innocent until proven guilty, CASA knows better apparently. This is the same pending CDPP investigation that CASA has delayed at every turn since 1 Aug 20. I am taking this matter to the AAT, with an Interlocutory hearing set for Fri 24 Sep 21.
CASA needs to know about the challenges being faced by the aviation community and be made aware of emerging and evolving safety risks.
CASA overlooks the unlawful behaviour of SAFA, who can suspend and cancel licences for "no reason" just like CASA can. This creates a worlds-worst-practice safety culture where no one would dare to raise safety issues for fear of being banned by the club "in group" of so-called leadership. The SAFA constitution is illegal under Australian law, specifically the Administrative Appeals Tribunal Act 1975 which states a person receiving an unfavourable decision must be informed of their right of reply. Yet CASA tolerates this situation within SAFA, and within CASA, for years on end, with no explanation. This situation is inexplicable and deeply disturbing, from a modern safety culture point of view, in line with basic world safety philosophy.
To translate this engagement into practical outcomes, it is our job to listen. By that I mean we must not make judgements on the views of others before asking questions and making sure we really understand the issues being raised. And, of course, we must be ready to act.
CASA is currently making judgements on my views, without asking any questions of the unlawful behaviour of SAFA. CASA has not been acting; rather CASA refuses to review my 20 page paragliding operations manual (PGOM) in support of my Part 149 SAO application. The document is exactly structured against the CASA compliance matrix framework for ease of reference.
CASA already engages widely with the aviation community and my emphasis is intended to build and improve on these existing formal and informal communications. My intention is not to create a whole new way of operating, but rather to strengthen the relationships and communication between CASA and the aviation community.
The typical response time of CASA to a simple question is one month. So far, CASA has taken over 1 year to ponder, and now outright refuses, to review my 20 page Part 149 paperwork! I have reluctantly taken the matter to the AAT to force CASA to "do their day job". This situation is a disgrace, and by my understanding, CASA's behaviour has adversely affected all aspects (including safety) of general aviation in this consistently adversarial, petty, and vindictive manner for the last 30 years. Honestly, you do need to "create a whole new way of operating". Any reasonable person can see that.
You may believe this is a minor matter to do with fringe, recreational sports aviation such as hang gliding, paragliding, and skydiving etc. I have included some news links below to highlight that the CASA inaction and dysfunctional regulation of sporting clubs like SAFA and APF is costing lives every year, and it will continue to do so until addressed head on.
Yours Sincerely,
Kurt Pudniks BE (Hons) BSc (Hons) MIEAust CPEng
***
Husband whose wife died in Mission Beach skydiving accident launches legal action (ABC News, 9 Sep 21)
Complaints against paragliding instructor 'ignored' before fatal crash, coroner hears (ABC News, 21 Jan 15)
***
***
Good afternoon Pip,
I have been reading up extensively on the 30 year history of CASA nee CAA in general aviation matters.
I sincerely wish you well on the transformative culture change that is clearly desperately required.
I also read your recent briefing to industry and I have formatted my letter as a response to your briefing (please find your text in green below).
I have made it clear to everyone in CASA that a key part of our job is engagement and listening.
CASA Investigators called me up and made allegations of illegal flying. They refused to identify their qualifications, or legal powers to do so, or the process ahead. By contrast, CASA Investigators ignore the unlawful behaviour of SAFA at every turn. I made a complaint to your ICC and his initial weak finding was that "I did not rely on the information and views of CASA". When I clarified the issue further, your ICC is so slow to investigate (currently underway on this issue), he is practically useless.
We must have effective and productive working relationships with people and organisations across all sectors of Australian aviation so that we engage on issues in a timely and meaningful way.
CASA has taken over 12 months to stall their review of my 20 page document for Part 149 self administering organisations (SAO). Faced with pressure to do something after one year, CASA now outright refuses to review my paperwork, having deemed the pending CDPP investigation "relevant" for some reason. So much for innocent until proven guilty, CASA knows better apparently. This is the same pending CDPP investigation that CASA has delayed at every turn since 1 Aug 20. I am taking this matter to the AAT, with an Interlocutory hearing set for Fri 24 Sep 21.
CASA needs to know about the challenges being faced by the aviation community and be made aware of emerging and evolving safety risks.
CASA overlooks the unlawful behaviour of SAFA, who can suspend and cancel licences for "no reason" just like CASA can. This creates a worlds-worst-practice safety culture where no one would dare to raise safety issues for fear of being banned by the club "in group" of so-called leadership. The SAFA constitution is illegal under Australian law, specifically the Administrative Appeals Tribunal Act 1975 which states a person receiving an unfavourable decision must be informed of their right of reply. Yet CASA tolerates this situation within SAFA, and within CASA, for years on end, with no explanation. This situation is inexplicable and deeply disturbing, from a modern safety culture point of view, in line with basic world safety philosophy.
To translate this engagement into practical outcomes, it is our job to listen. By that I mean we must not make judgements on the views of others before asking questions and making sure we really understand the issues being raised. And, of course, we must be ready to act.
CASA is currently making judgements on my views, without asking any questions of the unlawful behaviour of SAFA. CASA has not been acting; rather CASA refuses to review my 20 page paragliding operations manual (PGOM) in support of my Part 149 SAO application. The document is exactly structured against the CASA compliance matrix framework for ease of reference.
CASA already engages widely with the aviation community and my emphasis is intended to build and improve on these existing formal and informal communications. My intention is not to create a whole new way of operating, but rather to strengthen the relationships and communication between CASA and the aviation community.
The typical response time of CASA to a simple question is one month. So far, CASA has taken over 1 year to ponder, and now outright refuses, to review my 20 page Part 149 paperwork! I have reluctantly taken the matter to the AAT to force CASA to "do their day job". This situation is a disgrace, and by my understanding, CASA's behaviour has adversely affected all aspects (including safety) of general aviation in this consistently adversarial, petty, and vindictive manner for the last 30 years. Honestly, you do need to "create a whole new way of operating". Any reasonable person can see that.
You may believe this is a minor matter to do with fringe, recreational sports aviation such as hang gliding, paragliding, and skydiving etc. I have included some news links below to highlight that the CASA inaction and dysfunctional regulation of sporting clubs like SAFA and APF is costing lives every year, and it will continue to do so until addressed head on.
Yours Sincerely,
Kurt Pudniks BE (Hons) BSc (Hons) MIEAust CPEng
***
Husband whose wife died in Mission Beach skydiving accident launches legal action (ABC News, 9 Sep 21)
Complaints against paragliding instructor 'ignored' before fatal crash, coroner hears (ABC News, 21 Jan 15)
***
Last edited by skinduptruk; 15th Dec 2021 at 05:43. Reason: fix urls
Well it depends upon what you mean by "discipline". My experience and observation is that these organisations are as much about personalities and egos and strong opinions and factions and pettiness and vindictiveness as they are about the objective interests of the people 'regulated' and safety. A lot like CASA, really.
If the 'discipline' is objectively necessary and proportionate to some risk, confirmed by external merits review if the person subject to it chooses to seek a review, that's fine. The folks who aren't amenable to that kind of discipline are going to smear themselves across a hillside in any event. And I doubt whether they'd be able to convince CASA that the proposed new organisation has the competence and capacity to join the cosy symbiosis.
If the 'discipline' is objectively necessary and proportionate to some risk, confirmed by external merits review if the person subject to it chooses to seek a review, that's fine. The folks who aren't amenable to that kind of discipline are going to smear themselves across a hillside in any event. And I doubt whether they'd be able to convince CASA that the proposed new organisation has the competence and capacity to join the cosy symbiosis.
Last edited by Wizofoz; 14th Dec 2021 at 20:48.
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Aus is descended from convicts and their jailors.
CASA must enjoy watching the clubs abuse their fake powers (which CASA can take away at any time). Therefore the clubs are desperate to show their jailors CASA how good a Chief Convict they have become in “managing” their fellow citizen.
Weak, pathetic, and unlawful. But more importantly, such a popularity contest is inherently unsafe.
CASA must enjoy watching the clubs abuse their fake powers (which CASA can take away at any time). Therefore the clubs are desperate to show their jailors CASA how good a Chief Convict they have become in “managing” their fellow citizen.
Weak, pathetic, and unlawful. But more importantly, such a popularity contest is inherently unsafe.
Dick Smith and I once put together a very professional proposal around NVFR ratings and we never got a reply other than to say that the new director would look at it when he started and nothing but crickets followed.
I'll say it again, Kurt: Welcome to the party.
At least you've quickly worked out the 'end game': CASA has already decided it's not going to approve your application. As a matter of practicality, your application is doomed.
Like "the safety of air navigation", the concept of "bringing the sport, the club or yourself into disrepute" means everything and nothing. CASA and the club are Humpty Dumpty, using those words to mean whatever they choose them to mean.
My prediction: In the unlikely event that your AAT application progresses to a point where the AAT is going to consider the merits of your application for a Part 149 ASAO certificate and could find in your favour, CASA will issue an instrument limiting the number of PG ASAO certificates so that the approval of your application would exceed that number. CASR 149.060 says:
You would have to spend around half a dozen years and a few lazy millions getting to the High Court to get a judgment on whether CASA's limitation instrument was valid, and you would probably lose. "CASA is satisfied that exceeding the limit is likely to have an adverse effect on the safety of air navigation" are Humpty Dumpty words.
An application for an ASOA certificate is subject to CASR 11.055. As you can see, CASR 11.055 is clear and concise without any subjective criteria:
Note the Humpty Dumpty words: "granting the authorisation would not be likely to have an adverse effect on the safety of air navigation"; "the applicant’s demonstrated attitude towards compliance with regulatory requirements"; "the applicant’s history, if any, of serious behavioural problems".
Note also that an applicant doesn't have to have been convicted of anything before it is possible for CASA to hold "evidence ... that the applicant has contravened ... the Act or these Regulations". In any event, CASA can take into account "any other matter relating to the fitness of the applicant to hold the authorisation".
You are upsetting and bothering people in 'authority'. That's a serious behavioural problem. Your attitude to compliance with the rules is not a good one. You're being investigated for a breach of the law. That's evidence of a contravention.
Before they have to play those tricks on you, you'll get the "Buckley Treatment". Under CASR 11.030, your application is not complete unless and until a number of criteria are satisfied. You should look at those criteria.
Some comments on the content of your earlier posts, to try to get you focussed on productive activities rather than bush lawyer rabbit holes:
You say:
We don't make accident reports to CASA. Accident reports are made to ATSB. The ATSB may pass on information about accidents to CASA, but that's not the same thing and is not what you asked for.
I'd suggest you back out of the FOI rabbit hole, until you understand who has what records and you know how to frame a sensible FOI request. Being "deemed vexatious" can't be good for you when CASA comes to assess your "behaviour" and "attitude".
You say:
Indeed. And anyone is indeed entitled to apply to start a Part 149 org.
But being entitled to be granted the approval is an entirely different matter. You first have to submit an application that is "complete" as defined in CASR 11.030 and then the applicant and the application are assessed in accordance with CASR 11.055. And, as I noted above, if CASA issues an instrument limiting the number of PG ASAOs, it's instantly 'game over'.
You ask and opine:
What a bad attitude! The conduct is in the interests of the safety of air navigation. Who and what could possibly and sensibly get in the way of those interests?
You say in your letter to Ms Spence:
Precisely. As you can see from CASR 11.055, you don't have to be convicted of anything and CASA can still have evidence that you've contravened the rules and use it against you. "Innocent until proven guilty" would get in the way of the safety of air navigation.
You also said:
That's a bush lawyer rabbit hole. Do yourself a favour and back out of it.
Most important question de jour: What happened at the "interlocutory hearing set for Fri 24 Sep 21"?
At least you've quickly worked out the 'end game': CASA has already decided it's not going to approve your application. As a matter of practicality, your application is doomed.
Like "the safety of air navigation", the concept of "bringing the sport, the club or yourself into disrepute" means everything and nothing. CASA and the club are Humpty Dumpty, using those words to mean whatever they choose them to mean.
My prediction: In the unlikely event that your AAT application progresses to a point where the AAT is going to consider the merits of your application for a Part 149 ASAO certificate and could find in your favour, CASA will issue an instrument limiting the number of PG ASAO certificates so that the approval of your application would exceed that number. CASR 149.060 says:
149.060 CASA may limit number of ASAO certificates
(1) For the purposes of subsection 98(5A) of the Act, CASA may issue a legislative instrument imposing limits on the number of ASAO certificates that may be issued if CASA is satisfied that exceeding the limit is likely to have an adverse effect on the safety of air navigation.
(2) A limit may be imposed:
(a) indefinitely or for a specified period; or
(b) generally or in relation to a specified class of aviation administration functions.
(3) CASA may, by legislative instrument, vary or revoke an instrument made under subregulation (1).
(1) For the purposes of subsection 98(5A) of the Act, CASA may issue a legislative instrument imposing limits on the number of ASAO certificates that may be issued if CASA is satisfied that exceeding the limit is likely to have an adverse effect on the safety of air navigation.
(2) A limit may be imposed:
(a) indefinitely or for a specified period; or
(b) generally or in relation to a specified class of aviation administration functions.
(3) CASA may, by legislative instrument, vary or revoke an instrument made under subregulation (1).
An application for an ASOA certificate is subject to CASR 11.055. As you can see, CASR 11.055 is clear and concise without any subjective criteria:
11.055 Grant of authorisation
(1) This regulation applies despite any other provision of these Regulations that provides for the grant or issue of an authorisation, but subject to section 30A and paragraphs 30DY(2)(b), 30DZ(2)(b) and 30EC(2)(b) of the Act.
Note 1: Under section 30A of the Act, the Court may make an order excluding a person from a particular aviation activity for a specified period (the exclusion period). Under subsection 30A(4), during the exclusion period any authorisation granted to the person for the activity is of no effect and a new authorisation to undertake the activity is not to be granted to the person.
Note 2: Under section 30DY of the Act, CASA must give the holder of an authorisation a demerit suspension notice if the holder has incurred at least 12 demerit points in relation to authorisations of the same class in a 3 year period. Under paragraph 30DY(2)(b), the holder is not entitled to be granted a new authorisation of that class during the period of the suspension.
Note 3: Under section 30DZ of the Act, CASA must give the holder of an authorisation a demerit suspension notice if the holder has incurred at least 6 demerit points in relation to authorisations of the same class in a 3 year period and has previously been given a demerit suspension notice in relation to that class of authorisations. Under paragraph 30DZ(2)(b), the holder is not entitled to be granted a new authorisation of that class during the period of the suspension.
Note 4: Under section 30EC of the Act, CASA must give the holder of an authorisation a demerit cancellation notice if the holder has incurred at least 6 demerit points in relation to authorisations of the same class in a 3 year period and has twice previously been given a demerit suspension notice in relation to that class of authorisations. Under paragraph 30EC(2)(b), the holder is not entitled to be granted a new authorisation of that class for 3 years from the date of the notice.
(1A) Subject to subregulations (1B) and (1C), if a person has applied for an authorisation in accordance with these Regulations, CASA may grant the authorisation only if:
(a) the person meets the criteria specified in these Regulations for the grant of the authorisation; and
(b) any other requirements in relation to the person that are specified in these Regulations for the grant of the authorisation are met; and
(c) any other requirements in relation to the thing in respect of which the application is made that are specified in these Regulations for the grant of the authorisation are met; and
(d) these Regulations do not forbid CASA granting the authorisation in the particular case; and
(e) granting the authorisation would not be likely to have an adverse effect on the safety of air navigation.
(1B) If another provision of these Regulations provides that this subregulation applies to the granting of the authorisation, CASA may grant the authorisation only if:
(a) the requirements of paragraphs (1A)(a) to (d) are satisfied; and
(b) granting the authorisation will preserve a level of aviation safety that is at least cceptable.
(1C) If the authorisation is an experimental certificate, CASA may grant the authorisation only if:
(a) the requirements of paragraphs (1A)(a) to (d) are satisfied; and
(b) granting the authorisation would not be likely to have an adverse effect on the safety of other airspace users or persons on the ground or water.
(2) In paragraph (1A)(a), a reference to meeting the criteria for the grant of an uthorisation includes (in the case of an applicant who is an individual):
(a) having any qualifications required by or under these Regulations for the grant of the authorisation; and
(b) having any experience required by or under these Regulations for that grant; and
(c) having successfully completed any training required by or under these Regulations for that grant; and
(d) if there is a requirement as to recency or currency of the applicant’s training or experience—meeting that requirement; and
(e) if a standard of medical fitness is required by or under these Regulations for that grant:
(i) having attained that standard; and
(ii) having been granted any medical certificate required; and
(f) if particular attributes of character are required by or under these Regulations for that grant—having those attributes; and
(g) if a standard of proficiency in an activity is required by or under these Regulations for that grant—meeting that standard of proficiency.
(3) If these Regulations limit in any way the number of authorisations of the relevant kind that may be granted, CASA may refuse to grant the authorisation if the limit will be exceeded if the authorisation is granted.
(4) For paragraphs (1A)(e) and (1B)(b), CASA may take into account:
(a) the applicant’s record of compliance with regulatory requirements (in Australia or elsewhere) relating to aviation safety and other transport safety; and
(b) the applicant’s demonstrated attitude towards compliance with regulatory requirements (in Australia or elsewhere) relating to aviation safety and other transport safety; and
(c) the applicant’s experience (if any) in aviation; and
(d) the applicant’s knowledge of the regulatory requirements applicable to civil aviation in Australia; and
(e) the applicant’s history, if any, of serious behavioural problems; and
(f) any conviction (other than a spent conviction, within the meaning of Part VIIC of the Crimes Act 1914) of the applicant (in Australia or elsewhere) for a transport safety offence; and
(g) any evidence held by CASA that the applicant has contravened:
(i) the Act or these Regulations; or
(ii) a law of another country relating to aviation safety; or
(iii) another law (of Australia or of another country) relating to transport safety; and
(h) in the case of an authorisation referred to in subregulation 11.040(2), the applicant’s financial standing and financial stability; and
(i) any other matter relating to the fitness of the applicant to hold the authorisation.
(5) For the application of paragraphs (4)(a) to (i) in relation to an applicant that is a corporation, references to the applicant include each of the officers (other than employees) of the applicant.
(6) For the application of paragraphs (4)(a) to (i) in relation to an applicant that is a member of a partnership, references to the applicant include each of the other members of the partnership.
(7) CASA may grant the authorisation in respect of only some of the matters sought in the application.
(1) This regulation applies despite any other provision of these Regulations that provides for the grant or issue of an authorisation, but subject to section 30A and paragraphs 30DY(2)(b), 30DZ(2)(b) and 30EC(2)(b) of the Act.
Note 1: Under section 30A of the Act, the Court may make an order excluding a person from a particular aviation activity for a specified period (the exclusion period). Under subsection 30A(4), during the exclusion period any authorisation granted to the person for the activity is of no effect and a new authorisation to undertake the activity is not to be granted to the person.
Note 2: Under section 30DY of the Act, CASA must give the holder of an authorisation a demerit suspension notice if the holder has incurred at least 12 demerit points in relation to authorisations of the same class in a 3 year period. Under paragraph 30DY(2)(b), the holder is not entitled to be granted a new authorisation of that class during the period of the suspension.
Note 3: Under section 30DZ of the Act, CASA must give the holder of an authorisation a demerit suspension notice if the holder has incurred at least 6 demerit points in relation to authorisations of the same class in a 3 year period and has previously been given a demerit suspension notice in relation to that class of authorisations. Under paragraph 30DZ(2)(b), the holder is not entitled to be granted a new authorisation of that class during the period of the suspension.
Note 4: Under section 30EC of the Act, CASA must give the holder of an authorisation a demerit cancellation notice if the holder has incurred at least 6 demerit points in relation to authorisations of the same class in a 3 year period and has twice previously been given a demerit suspension notice in relation to that class of authorisations. Under paragraph 30EC(2)(b), the holder is not entitled to be granted a new authorisation of that class for 3 years from the date of the notice.
(1A) Subject to subregulations (1B) and (1C), if a person has applied for an authorisation in accordance with these Regulations, CASA may grant the authorisation only if:
(a) the person meets the criteria specified in these Regulations for the grant of the authorisation; and
(b) any other requirements in relation to the person that are specified in these Regulations for the grant of the authorisation are met; and
(c) any other requirements in relation to the thing in respect of which the application is made that are specified in these Regulations for the grant of the authorisation are met; and
(d) these Regulations do not forbid CASA granting the authorisation in the particular case; and
(e) granting the authorisation would not be likely to have an adverse effect on the safety of air navigation.
(1B) If another provision of these Regulations provides that this subregulation applies to the granting of the authorisation, CASA may grant the authorisation only if:
(a) the requirements of paragraphs (1A)(a) to (d) are satisfied; and
(b) granting the authorisation will preserve a level of aviation safety that is at least cceptable.
(1C) If the authorisation is an experimental certificate, CASA may grant the authorisation only if:
(a) the requirements of paragraphs (1A)(a) to (d) are satisfied; and
(b) granting the authorisation would not be likely to have an adverse effect on the safety of other airspace users or persons on the ground or water.
(2) In paragraph (1A)(a), a reference to meeting the criteria for the grant of an uthorisation includes (in the case of an applicant who is an individual):
(a) having any qualifications required by or under these Regulations for the grant of the authorisation; and
(b) having any experience required by or under these Regulations for that grant; and
(c) having successfully completed any training required by or under these Regulations for that grant; and
(d) if there is a requirement as to recency or currency of the applicant’s training or experience—meeting that requirement; and
(e) if a standard of medical fitness is required by or under these Regulations for that grant:
(i) having attained that standard; and
(ii) having been granted any medical certificate required; and
(f) if particular attributes of character are required by or under these Regulations for that grant—having those attributes; and
(g) if a standard of proficiency in an activity is required by or under these Regulations for that grant—meeting that standard of proficiency.
(3) If these Regulations limit in any way the number of authorisations of the relevant kind that may be granted, CASA may refuse to grant the authorisation if the limit will be exceeded if the authorisation is granted.
(4) For paragraphs (1A)(e) and (1B)(b), CASA may take into account:
(a) the applicant’s record of compliance with regulatory requirements (in Australia or elsewhere) relating to aviation safety and other transport safety; and
(b) the applicant’s demonstrated attitude towards compliance with regulatory requirements (in Australia or elsewhere) relating to aviation safety and other transport safety; and
(c) the applicant’s experience (if any) in aviation; and
(d) the applicant’s knowledge of the regulatory requirements applicable to civil aviation in Australia; and
(e) the applicant’s history, if any, of serious behavioural problems; and
(f) any conviction (other than a spent conviction, within the meaning of Part VIIC of the Crimes Act 1914) of the applicant (in Australia or elsewhere) for a transport safety offence; and
(g) any evidence held by CASA that the applicant has contravened:
(i) the Act or these Regulations; or
(ii) a law of another country relating to aviation safety; or
(iii) another law (of Australia or of another country) relating to transport safety; and
(h) in the case of an authorisation referred to in subregulation 11.040(2), the applicant’s financial standing and financial stability; and
(i) any other matter relating to the fitness of the applicant to hold the authorisation.
(5) For the application of paragraphs (4)(a) to (i) in relation to an applicant that is a corporation, references to the applicant include each of the officers (other than employees) of the applicant.
(6) For the application of paragraphs (4)(a) to (i) in relation to an applicant that is a member of a partnership, references to the applicant include each of the other members of the partnership.
(7) CASA may grant the authorisation in respect of only some of the matters sought in the application.
Note also that an applicant doesn't have to have been convicted of anything before it is possible for CASA to hold "evidence ... that the applicant has contravened ... the Act or these Regulations". In any event, CASA can take into account "any other matter relating to the fitness of the applicant to hold the authorisation".
You are upsetting and bothering people in 'authority'. That's a serious behavioural problem. Your attitude to compliance with the rules is not a good one. You're being investigated for a breach of the law. That's evidence of a contravention.
Before they have to play those tricks on you, you'll get the "Buckley Treatment". Under CASR 11.030, your application is not complete unless and until a number of criteria are satisfied. You should look at those criteria.
Some comments on the content of your earlier posts, to try to get you focussed on productive activities rather than bush lawyer rabbit holes:
You say:
PS. To pass the time, I have asked CASA freedom of information (FOI) for a copy of all PG accident reports (or accident investigation reports) that SAFA provides to CASA. The initial CASA reply has been to suggest that CASA does not hold such data. If true, then SAFA really is left to run things without oversight. The FOI officer hinted that if I were to persist with requests for safety reports, my request could be deemed vexatious. My reply was that I would enjoy a situation where CASA tried to justify denying access to basic safety reports. So it seems the adversarial CASA culture goes all the way to the core, even for basic safety report matters. I remain hopeful the new CEO can address the current CASA culture problems.
I'd suggest you back out of the FOI rabbit hole, until you understand who has what records and you know how to frame a sensible FOI request. Being "deemed vexatious" can't be good for you when CASA comes to assess your "behaviour" and "attitude".
You say:
anyone should be entitled to apply to start a Part 149 org
But being entitled to be granted the approval is an entirely different matter. You first have to submit an application that is "complete" as defined in CASR 11.030 and then the applicant and the application are assessed in accordance with CASR 11.055. And, as I noted above, if CASA issues an instrument limiting the number of PG ASAOs, it's instantly 'game over'.
You ask and opine:
why does Senate estimates allow such CASA conduct to be possible, if not probable? my theory - it serves as a test case of what Aus citizens will tolerate, and what the courts can and/or will do about it to push back. it used to be called justice.
You say in your letter to Ms Spence:
So much for innocent until proven guilty, CASA knows better apparently.
You also said:
The SAFA constitution is illegal under Australian law, specifically the Administrative Appeals Tribunal Act 1975 which states a person receiving an unfavourable decision must be informed of their right of reply.
Most important question de jour: What happened at the "interlocutory hearing set for Fri 24 Sep 21"?
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AAT case law re fit and proper person test (ASQA)
Hi LB, pls read Repacholi case law (link above).
CASA held an anon VHS tape they tried to use as evidence of his sins. he won. because the evidence showed nothing “unsafe” and showed CASA didnt have a clue about that specific plane operation to boot.
link below is a case where AAT said the Gov (ASQA) was unfair in its “fit and proper” test.
Trades College Australia Pty Ltd and Australian Skills Quality Authority [2020] AATA 812 (16 April 2020)
btw the High Court only costs $4,000 and one can represent oneself.
i do realise ur applying the “black hat” worst case analysis. but there may be hope yet 🤠
may i suggest, pls read these AAT links in full (Repacholi + ASQA so far, with the Qantas + CASA failure on FRMS up next).
imho the AAT has more power and more common sense than you seem to suggest. thx for your thoughtful replies tho! 🙏🏻
CASA held an anon VHS tape they tried to use as evidence of his sins. he won. because the evidence showed nothing “unsafe” and showed CASA didnt have a clue about that specific plane operation to boot.
link below is a case where AAT said the Gov (ASQA) was unfair in its “fit and proper” test.
Trades College Australia Pty Ltd and Australian Skills Quality Authority [2020] AATA 812 (16 April 2020)
btw the High Court only costs $4,000 and one can represent oneself.
i do realise ur applying the “black hat” worst case analysis. but there may be hope yet 🤠
may i suggest, pls read these AAT links in full (Repacholi + ASQA so far, with the Qantas + CASA failure on FRMS up next).
imho the AAT has more power and more common sense than you seem to suggest. thx for your thoughtful replies tho! 🙏🏻
Rest assured I've read all AAT and Federal Court matters in which CASA has been a party.
The AAT has lots of power and most DPs/Members have big brains and lots of common sense. But the 'safety of air navigation' and the opinions of 'the authority' often bamboozle them. And there is nothing the AAT can do if CASA decides to limit the number of ASAO certificates it's going to issue. That's done by legislative instrument and the AAT has no jurisdiction to review the decision to issue a legislative instrument.
And what happened on 24 September?
The AAT has lots of power and most DPs/Members have big brains and lots of common sense. But the 'safety of air navigation' and the opinions of 'the authority' often bamboozle them. And there is nothing the AAT can do if CASA decides to limit the number of ASAO certificates it's going to issue. That's done by legislative instrument and the AAT has no jurisdiction to review the decision to issue a legislative instrument.
And what happened on 24 September?
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AAT case law re FRMS (Qantas + CASA)
i called the AAT and was told that there may or may not be further info required. in any case, i will be emailed one day before any notes get published. not quite sure what purpose that serves other than “brace brace brace” 😬
PS. AAT case law re fatigue risk mgmt system (FRMS). note QANTAS took CASA’s side. they both lost. also note the outrageous claims made by CASA to suggest they are simply above the law. how ridiculous.
Australian and International Pilots Association and Civil Aviation Safety Authority [2020] AATA 3444 (4 September 2020)
Last edited by skinduptruk; 15th Dec 2021 at 05:35. Reason: fix url