Pudniks and CASA [2021/5950]
It's already been answered, an RC glider is a model aircraft/drone, just non powered. The only dispensation from the definition is wire controlled park flyers as described in the regs. Put simply a drone is any remotely controlled flying machine, a model aircraft is a drone used for recreational purposes, a RPA is a drone used for commercial purposes. Method of how it flies is not relevant, ie powered or not, electric vs piston or jet, 50 props or none, helicopter vs fixed wing, it could use anti gravity technology or shoot sunbeams out its ass, it don't matter. If a man made item leaves the earth and moves in the atmosphere in sustained flight, it is now an aircraft and subject to the laws of the country it is flying over. If it is remotely controlled it is a drone, otherwise if piloted you need to follow the normal rules of the air. The rules on whether your drone or piloted vehicle requires a licence, certificate or accreditation or not is contained in the relevant regulations. All aircraft require to be operated by a licensed, accredited or certified operator unless the regulation has a dispensation. Which has been spelled out numerous times in this thread, arguing with a magistrate or judge over semantics will just get them frustrated and angry and make your situation worse pushing your penalty towards the upper limits rather than minimal.
Not a hoax. Answer is no. But I'd rather give CASA enough rope. I have fried bigger fish than this.
You do realise, by the way, that the contents of this thread may be used as evidence against you?
With the greatest respect, CASA is not on trial; You are. The Magistrate will no doubt remind you of this. If you fail to listen......bring your tooth brush.
Don't worry, Sunfish. Mr Pudniks has this nailed.
Earlier in this thread (at #69) he quoted the court attendance procedures for NSW. Admittedly the proceedings he quoted are for civil proceedings, but hey - what the heck - civil? criminal? - it's all the same and he's given CASA enough rope. (I imagine CASA has made a lovely macramé wall feature with it by now.)
Earlier in this thread (at #69) he quoted the court attendance procedures for NSW. Admittedly the proceedings he quoted are for civil proceedings, but hey - what the heck - civil? criminal? - it's all the same and he's given CASA enough rope. (I imagine CASA has made a lovely macramé wall feature with it by now.)
Thread Starter
Join Date: Dec 2021
Location: Sydney
Posts: 1
Likes: 0
Received 0 Likes
on
0 Posts
Method of how it flies is not relevant, ie powered or not, electric vs piston or jet, 50 props or none, helicopter vs fixed wing, it could use anti gravity technology or shoot sunbeams out its ass, it don't matter. If a man made item leaves the earth and moves in the atmosphere in sustained flight, it is now an aircraft and subject to the laws of the country it is flying over.
You mentioned a few things that are interesting.
1. Powered or not.
2. Anti-gravity or photon-drive (looks like we both enjoy Star Trek).
Question #1 - "flight" is when "the aircraft moves under its own power". So tell me how exactly can an unpowered craft ever undertake a "flight"?
Question #2 - "aircraft" is "a craft that derives support from reactions* of the air". So why would such alternative methods of lift make it an "aircraft" exactly?
*Reaction requires there to be an Action (force over distance) enacted on the air. Gliders tend to fall under gravity only; there is no thrust!
I am quoting the definitions from the CAA 1988 of course
Thread Starter
Join Date: Dec 2021
Location: Sydney
Posts: 1
Likes: 0
Received 0 Likes
on
0 Posts
I have been asked to attend a local court hearing held by a Magistrate. Judge and Jury might cost extra.
I read the Angel Flight transcript (92pp or so) which gave me an idea of the banter. Some good quotes in there actually, like "legislation by puzzle-making" and "the Australian empirical lack". Alas Mr Walker did not win the day for Angel Flight.
Thread Starter
Join Date: Dec 2021
Location: Sydney
Posts: 1
Likes: 0
Received 0 Likes
on
0 Posts
Hey LB, a quick note, that you can use the "permalink" at top right to link to a specific post. It's quite handy to jump when referring to a specific post.
PS. Please consider my "statutory interpretation" above re aircraft and flight.
Question: does CASA have legislated authority to do such? Or does the Aus Constitution say only the courts shall decide how to apply the Laws of the Land? Honest question. Thanks for your sustained interest in my case.
PS. Please consider my "statutory interpretation" above re aircraft and flight.
Question: does CASA have legislated authority to do such? Or does the Aus Constitution say only the courts shall decide how to apply the Laws of the Land? Honest question. Thanks for your sustained interest in my case.
I believe Federal courts are held by Judges.
I have been asked to attend a local court hearing held by a Magistrate. Judge and Jury might cost extra.
I read the Angel Flight transcript (92pp or so) which gave me an idea of the banter. Some good quotes in there actually, like "legislation by puzzle-making" and "the Australian empirical lack". Alas Mr Walker did not win the day for Angel Flight.
I have been asked to attend a local court hearing held by a Magistrate. Judge and Jury might cost extra.
I read the Angel Flight transcript (92pp or so) which gave me an idea of the banter. Some good quotes in there actually, like "legislation by puzzle-making" and "the Australian empirical lack". Alas Mr Walker did not win the day for Angel Flight.
Beyond that you will be in front of a judge possibly a jury and the stakes are much higher. The banter you refer to are senior barristers arguing their case.
My hazy memory and recollections of a relative who was a magistrate whose court I attended out of curiosity suggest that there is no time for "banter" in a Magistrates Court, quite the opposite. I am at a loss to understand how you might escape conviction given your alleged admission of the facts and intention represent yourself.
If you are very lucky you might strike a "caring and sharing" Magistrate who may help you avoid a conviction on the spot. You might also be unlucky and get a grumpy old Bloke who cuts you off when you say "Yes your honor but I can explain.....". convicts you and moves on to the next case in a few minutes.
Please get legal advice.
Question #1 - "flight" is when "the aircraft moves under its own power". So tell me how exactly can an unpowered craft ever undertake a "flight"?
Question #2 - "aircraft" is "a craft that derives support from reactions* of the air". So why would such alternative methods of lift make it an "aircraft" exactly?
Mr Pudniks
If you wish to argue that a glider is not an "aircraft" within the meaning of that word in the Civil Aviation Act, knock yourself out. I'll bring a bigger bag of popcorn.
From my perspective, a glider is the paradigm example of a machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface. That's why good glider pilots can fly a 1,000km triangle. The main constraint on great glider pilots is not so much gravity, but more the number of hours of daylight.
It's about 'Aerodynamics 101' and a thing called a 'wing'. You've heard of 'wings'. It's one of those things that you've said you fly.
A Cessna 172 and a Piper Cherokee and any other aeroplane you'd like to name is just a glider with one or more engines. Google "the Gimli glider".
You quote the definition of "model aircraft" from CASRs, and still can't work out whether a model glider is an "aircraft" for the purposes of the civil aviation rules? Seriously?
Your problem is not so much that you're a smartarse; It's more that you're a smartarse who isn't smart enough to know when to shut his mouth. That's why I said that prosecutors love defendants like you. In contrast but for the same reason, I'd hazard a guess and say that HGFA/SAFA won't be missing you much.
Chances are that all that will happen on the 21st is your plea will be taken and, if you plead not guilty or do not enter a plea, a date will be set for the hearing. Chances are you won't be remanded in custody or even on bail, but your mouth could affect those probabilities.
Good luck.
If you wish to argue that a glider is not an "aircraft" within the meaning of that word in the Civil Aviation Act, knock yourself out. I'll bring a bigger bag of popcorn.
From my perspective, a glider is the paradigm example of a machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface. That's why good glider pilots can fly a 1,000km triangle. The main constraint on great glider pilots is not so much gravity, but more the number of hours of daylight.
It's about 'Aerodynamics 101' and a thing called a 'wing'. You've heard of 'wings'. It's one of those things that you've said you fly.
A Cessna 172 and a Piper Cherokee and any other aeroplane you'd like to name is just a glider with one or more engines. Google "the Gimli glider".
You quote the definition of "model aircraft" from CASRs, and still can't work out whether a model glider is an "aircraft" for the purposes of the civil aviation rules? Seriously?
Your problem is not so much that you're a smartarse; It's more that you're a smartarse who isn't smart enough to know when to shut his mouth. That's why I said that prosecutors love defendants like you. In contrast but for the same reason, I'd hazard a guess and say that HGFA/SAFA won't be missing you much.
Chances are that all that will happen on the 21st is your plea will be taken and, if you plead not guilty or do not enter a plea, a date will be set for the hearing. Chances are you won't be remanded in custody or even on bail, but your mouth could affect those probabilities.
Good luck.
Thread Starter
Join Date: Dec 2021
Location: Sydney
Posts: 1
Likes: 0
Received 0 Likes
on
0 Posts
My kitesurfer derives support from *actions* of the air. When I go kitesurfing, is that flying an aircraft? (By the definitions of CA Act 1988).
The Macquarie dictionary has two different listings for "action" and "reaction". Sir Isaac also has something to say about this some 356 years ago. Seems like we all need to brush up on some history.
Trust the science.
PS. Thanks for the heads up re plea + hearing. I tend to agree.
The Macquarie dictionary has two different listings for "action" and "reaction". Sir Isaac also has something to say about this some 356 years ago. Seems like we all need to brush up on some history.
Trust the science.
PS. Thanks for the heads up re plea + hearing. I tend to agree.
Kites and Wire controlled model aircraft are excluded from the rules, you just need to read the regulations its all there. And no, a hang glider can not be considered a kite, as it's not controlled by a tether to the ground. The only rules for kites are no more than 400ft high or within 3 nm of an airport, and not to create a public nuisance. You would probably be charged under danger to air navigation were you to impact your kite into any low flying aircraft.
Thread Starter
Join Date: Dec 2021
Location: Sydney
Posts: 1
Likes: 0
Received 0 Likes
on
0 Posts
Doesn't it say something about kites that do not carry a pilot? I'm thinking about the model aircraft section though.
In any case, it will be a landmark case of statutory interpretation imho.
And LB will be entertained, which is the main thing
In any case, it will be a landmark case of statutory interpretation imho.
And LB will be entertained, which is the main thing
While you might humbly suggest your upcoming appearance will be a watershed moment in the evolution of Australian aviation law jurisprudence, the heirachy of Courts being what it is means that even if (they won’t) your interpretations are preferred, it’s not gonna be landmark champ. That’s the domain of the HCA.
Thread Starter
Join Date: Dec 2021
Location: Sydney
Posts: 1
Likes: 0
Received 0 Likes
on
0 Posts
Thanks Incendiary Eolophus Roseicapilla,
I am assuming the defendant has a right to reasonably define (Macquarie dictionary) and understand (can qualified people with credentials of technical expertise aka Scientists be a burden unto themselves?) the charges against them. If so, I win, imho.
PS. I see a Senate Standing ctte on RRAT - Aus' GA Industry - new Sub #72 just went up here
I am assuming the defendant has a right to reasonably define (Macquarie dictionary) and understand (can qualified people with credentials of technical expertise aka Scientists be a burden unto themselves?) the charges against them. If so, I win, imho.
PS. I see a Senate Standing ctte on RRAT - Aus' GA Industry - new Sub #72 just went up here
Mr Pudniks
You may be interested in looking at the Victorian Supreme Court of Appeal decision in Mount Beauty Gliding Club Inc & Anor v Jacob [2004] VSCA 151 and, in particular:
- the finding that a glider is an aircraft for the purposes of the legislation relevant to that matter (carriers’ liability), but also…
- the reference in para 31 to the English Court of Appeal decision in Disley v Levine which held that a paraglider is not an “aircraft” for the purposes of the legislation under consideration in that case (also carriers’ liability).
But note footnote 33, at which Callaway JA makes clear that nothing in his decision and his reference to the English Court of Appeal decision in Disley v Levine is intended to express a view about paragliders.
Also have a look at para 90 of Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169.
Also have a look at Wardle v Kick and Ors [2006] NSWSC 327 in which the NSW Supreme Court just ‘took it as read’ that hang gliders and paragliders are subject to the regulatory regime provided under the Commonwealth Civil Aviation Act 1988 (though on the facts the case was about hang gliders).
(I know you're an expert at the 'Austlii' thing, so I'll leave you to find the judgments if you're interested.)
You may be interested in looking at the Victorian Supreme Court of Appeal decision in Mount Beauty Gliding Club Inc & Anor v Jacob [2004] VSCA 151 and, in particular:
- the finding that a glider is an aircraft for the purposes of the legislation relevant to that matter (carriers’ liability), but also…
- the reference in para 31 to the English Court of Appeal decision in Disley v Levine which held that a paraglider is not an “aircraft” for the purposes of the legislation under consideration in that case (also carriers’ liability).
But note footnote 33, at which Callaway JA makes clear that nothing in his decision and his reference to the English Court of Appeal decision in Disley v Levine is intended to express a view about paragliders.
Also have a look at para 90 of Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169.
Also have a look at Wardle v Kick and Ors [2006] NSWSC 327 in which the NSW Supreme Court just ‘took it as read’ that hang gliders and paragliders are subject to the regulatory regime provided under the Commonwealth Civil Aviation Act 1988 (though on the facts the case was about hang gliders).
(I know you're an expert at the 'Austlii' thing, so I'll leave you to find the judgments if you're interested.)
Also have a look at Wardle v Kick and Ors [2006] NSWSC 327 in which the NSW Supreme Court just ‘took it as read’ that hang gliders and paragliders are subject to the regulatory regime provided under the Commonwealth Civil Aviation Act 1988 (though on the facts the case was about hang gliders).
Thread Starter
Join Date: Dec 2021
Location: Sydney
Posts: 1
Likes: 0
Received 0 Likes
on
0 Posts
Originally Posted by Para 31 from Mt Beauty case law
In Disley v. Levine the claimant was injured in a paraglider accident. A paraglider consists of a canopy which is inflated by the wind to form an aerodynamic wing from which the pilot is suspended by a harness equipped with control lines. It usually carries only one person, but this was a tandem paraglider in which the claimant was under instruction from the defendant for her elementary pilot certificate. The English Court of Appeal held that the paraglider was not an aircraft for the purposes of Schedule 1 to the Air Navigation (No. 2) Order 1995, which was based on the Warsaw Convention as amended by the Hague Protocol and which would have had the effect either of barring the claim altogether or of limiting the amount of damages that could be recovered. That decision is distinguishable in at least three respects. First, it is a case about paragliders.
Thread Starter
Join Date: Dec 2021
Location: Sydney
Posts: 1
Likes: 0
Received 0 Likes
on
0 Posts
Originally Posted by Para 5 from Wardle v Kick and Ors
5. The Hang Gliding Federation of Australia maintains an Operations Manual. That manual provides standards and rules for operations, pilot certification and for pilot training. The aim of the manual is to ensure that hang gliding operations are carried out in accordance with the requirements of the Civil Aviation Act and the relevant Regulations and orders.
The SAFA nee HGFA Ops Manual does not achieve that aim - by definition! In fact CAO 95.8 says HG + PG are exempt from the CA Act 1988, so why, or how, could the Ops Manual do any such thing.
The last time I looked, the Ops Manual did not define "site" which gives you an idea of how thorough it is. It also defines PG3 and above are "unsupervised" which goes against something CASA wrote in their "statement of facts" for my case, that PG pilots are "supervised" by SAFA safety officers. This is incorrect and absurd even in theory, let alone practice. What it does show is how out of touch with real PG activities at real-world PG sites CASA are, for stating such a thing.
As you wrote LB, they seem to "take it as read" about the aircraft definition. There is no debate about that, in this case. Also note there was an actual safety incident. My case is purely about "operation of an aircraft in flight" with no actual event of unsafe air navigation. I believe this is CASA acting out their most absurd prosecution to date. It appears even the CDPP did not want to prosecute it themselves which is quite odd imho.
PS. Very interesting ruling about the English case, that PG is not an aircraft. Might be worth a passing mention, although I do understand that the overseas jurisdiction is not super relevant to us here. Better to have such a ruling than not though right!