PPL Passenger Limit in Australia
I thought that part was clear, that the 6 seat limit is for cost sharing flights. Any more than that and the pilot/owner has to foot the entire bill themselves. Still does not answer if there is a limit on passengers for a non cost shared flight, which the answer most likely is no. In theory you could fly a Saudi prince privately in their (Australian registered) 747 with 300 members of the harem if you had the appropriate ratings.
The scenario flight IS for hire or reward, because the passengers are paying you, and there are more than six seats. The fact that you have under-costed the flight, and are having to stump up your own cash is not CASA’s place to monitor. They don’t regulate whether you are running a profitable business, they only determine that you are asking for, and getting, money for the flight.
Before the cost sharing provisions came in, it was illegal for a new pilot to grab a Piper Warrior for a quick jolly with a couple of friends , and get them to throw in a few dollars for fuel, but it happened anyway. This reg recognised that, and the six seat rule kept those operations out of the Navajo/C402 small airline world, to close an obvious loophole.
Before the cost sharing provisions came in, it was illegal for a new pilot to grab a Piper Warrior for a quick jolly with a couple of friends , and get them to throw in a few dollars for fuel, but it happened anyway. This reg recognised that, and the six seat rule kept those operations out of the Navajo/C402 small airline world, to close an obvious loophole.
And thus the perennial arguments about distinctions which have no causal effect on objective safety risk continue. To ‘fast-forward’ to the conclusion, I’m confident I will eventually be able to get the folk tapping away in the CASA ‘Guidance Delivery Centre’ to concede that there is no set passenger limit on the privileges of a private pilot licence.
If we change the scenario from a cost-sharing flight in a 9 seat aircraft to a flight in exactly the same aircraft, with one of the passengers being the individual who happens to be the registered operator of the aircraft, the flight is, by definition, not a passenger transport operation if no payment or reward is made or given in relation to the carriage of the other passengers (or cargo). The registered operator of the aircraft is just flying around a bunch of mates for fun, entirely at the registered operator’s cost.
If the flight is not a passenger transport operation (nor a cargo transport operation nor medical transport operation, which it isn’t in this case) it follows that, by definition, the flight is not an air transport operation, given that we now know from the CASA Guidance Centre’s response that no instrument relevant to this issue has been issued under CASR 201.025. (That is why I agree with the gist of what 43 said at #61.)
But I chose the cost-sharing example so as to tease out a specific point. Checkboard said:
The first minor point to make is that the number of seats is irrelevant to whether a flight is conducted “for hire or reward”. The question whether an aircraft is being operated for hire or reward is not answered by looking to the maximum seat configuration of the aircraft (or the number of engines, or the fuel capacity….)
But to the more substantial point, you are effectively arguing that the pilot in command of a cost-sharing flight is not remunerated in the circumstances but the flight is nonetheless conducted “for reward”, are you not? (Perhaps that’s the CASA ‘Guidance Delivery Centre’s’ argument, too. We will see.) The reason I ask that question is that if the pilot in command is “remunerated” for a flight, the flight is, by definition, not a ‘cost-sharing’ flight.
So, the only way to remain within the scope of the ‘cost-sharing’ flight definition is to characterise the money the “passengers are paying” the pilot – your words - as not being remuneration of the pilot but, apparently on your (and perhaps the CASA ‘Guidance Delivery Centre’s’) view, the flight is conducted “for reward”.
Are you able to define the “reward” in the cost-sharing example? Is it that the pilot is less out of pocket than s/he would otherwise have been?
Hang on a sec’. According to Angel Flight Australia’s website: “Angel Flight Australia subsidises fuel used on flights, negotiates the waiver of landing fees at many supporting airports around the country, and arranges the credit of any air navigation charges, thanks to the support of Airservices Australia. Donations to Angel Flight are used to subsidise fuel costs.” And bloody well done Angel Flight, its donors and volunteers.
But the pilots of those flights are less out of pocket than they would otherwise be, but for the fuel subsidy and other arrangements made by Angel Flight. Very few, if any, flights organised by Angel Flight fall within the exclusions from the definition of “passenger transport operation”. How can flights arranged by Angel Flight be lawfully flown by the holders of private pilot licences, if the flight is conducted “for reward” in the form of the pilot being less out of pocket than they otherwise would be? I would have thought that CASA would be licking its lips in anticipation at any opportunity to impose further regulatory requirements on flights organised by Angel Flight.
I find every flight from which I walk away to be personally very rewarding. I conduct every flight to get that reward.
Is “reward” in this sense confined to matters monetary”? If yes, that raises a whole lot of other interesting questions. I and a PPL mate, as an act of pure charity, utilise a 9 seat aircraft of which I am the registered operator to conduct twice-daily flights from A to B on which any member of the public may fly as passengers (along with me), on a ‘first-in, best-dressed’ basis. Those flights fall within the scope of exclusion 2(e) of the definition of “passenger transport operation”. I bear the entirety of the costs and the PIC receives not a cent. But we both get enormous personal satisfaction from our good works. If the flights are not conducted “for hire or reward”…
You (Checkboard) also say:
Can you cite a judicial decision to that effect?
And how were and are flights arranged by Angel Flight ‘legal’ when they were not and are not ‘cost sharing’ and Angel Flight threw and continues to "throw in a few dollars for fuel”?
I’m always fascinated by the concept of a six seat “rule” when all it was, and remains, is an element of a definition. And I’ll give up pointing out probably the most important paragraph of the ‘private purposes’ deeming provision in the CARs 1988. I’ll try to put it this way. I’m the PIC of an aircraft with a maximum seat configuration of 6 including the pilot seat, with 6 adults and one babe in arms on board. The 6 adults cost share equally and the baby gets a freebie. I reckon that flight was “substantially similar to” a flight that fell within the definition in CAR 2(7A). Others may have a different opinion. Absent an authoritative decision by a court or tribunal, these matters will remain the subject of perennial arguments.
And note well: That flight could still fall within the scope of a ‘cost-sharing’ flight under the current rules, because the definition does not set a maximum POB number. It sets a maximum seat configuration number. Maximum seat configuration, including the pilot, of 6, 6 adults including the pilot and 1 babe in arms by my maths equals 7 POB.
If we change the scenario from a cost-sharing flight in a 9 seat aircraft to a flight in exactly the same aircraft, with one of the passengers being the individual who happens to be the registered operator of the aircraft, the flight is, by definition, not a passenger transport operation if no payment or reward is made or given in relation to the carriage of the other passengers (or cargo). The registered operator of the aircraft is just flying around a bunch of mates for fun, entirely at the registered operator’s cost.
If the flight is not a passenger transport operation (nor a cargo transport operation nor medical transport operation, which it isn’t in this case) it follows that, by definition, the flight is not an air transport operation, given that we now know from the CASA Guidance Centre’s response that no instrument relevant to this issue has been issued under CASR 201.025. (That is why I agree with the gist of what 43 said at #61.)
But I chose the cost-sharing example so as to tease out a specific point. Checkboard said:
The scenario flight [that is, a cost-sharing flight in a 9 seat aircraft] IS for hire or reward, because the passengers are paying you, and there are more than six seats. …
But to the more substantial point, you are effectively arguing that the pilot in command of a cost-sharing flight is not remunerated in the circumstances but the flight is nonetheless conducted “for reward”, are you not? (Perhaps that’s the CASA ‘Guidance Delivery Centre’s’ argument, too. We will see.) The reason I ask that question is that if the pilot in command is “remunerated” for a flight, the flight is, by definition, not a ‘cost-sharing’ flight.
So, the only way to remain within the scope of the ‘cost-sharing’ flight definition is to characterise the money the “passengers are paying” the pilot – your words - as not being remuneration of the pilot but, apparently on your (and perhaps the CASA ‘Guidance Delivery Centre’s’) view, the flight is conducted “for reward”.
Are you able to define the “reward” in the cost-sharing example? Is it that the pilot is less out of pocket than s/he would otherwise have been?
Hang on a sec’. According to Angel Flight Australia’s website: “Angel Flight Australia subsidises fuel used on flights, negotiates the waiver of landing fees at many supporting airports around the country, and arranges the credit of any air navigation charges, thanks to the support of Airservices Australia. Donations to Angel Flight are used to subsidise fuel costs.” And bloody well done Angel Flight, its donors and volunteers.
But the pilots of those flights are less out of pocket than they would otherwise be, but for the fuel subsidy and other arrangements made by Angel Flight. Very few, if any, flights organised by Angel Flight fall within the exclusions from the definition of “passenger transport operation”. How can flights arranged by Angel Flight be lawfully flown by the holders of private pilot licences, if the flight is conducted “for reward” in the form of the pilot being less out of pocket than they otherwise would be? I would have thought that CASA would be licking its lips in anticipation at any opportunity to impose further regulatory requirements on flights organised by Angel Flight.
I find every flight from which I walk away to be personally very rewarding. I conduct every flight to get that reward.
Is “reward” in this sense confined to matters monetary”? If yes, that raises a whole lot of other interesting questions. I and a PPL mate, as an act of pure charity, utilise a 9 seat aircraft of which I am the registered operator to conduct twice-daily flights from A to B on which any member of the public may fly as passengers (along with me), on a ‘first-in, best-dressed’ basis. Those flights fall within the scope of exclusion 2(e) of the definition of “passenger transport operation”. I bear the entirety of the costs and the PIC receives not a cent. But we both get enormous personal satisfaction from our good works. If the flights are not conducted “for hire or reward”…
You (Checkboard) also say:
Before the cost sharing provisions came in, it was illegal for a new pilot to grab a Piper Warrior for a quick jolly with a couple of friends , and get them to throw in a few dollars for fuel, but it happened anyway.
And how were and are flights arranged by Angel Flight ‘legal’ when they were not and are not ‘cost sharing’ and Angel Flight threw and continues to "throw in a few dollars for fuel”?
I’m always fascinated by the concept of a six seat “rule” when all it was, and remains, is an element of a definition. And I’ll give up pointing out probably the most important paragraph of the ‘private purposes’ deeming provision in the CARs 1988. I’ll try to put it this way. I’m the PIC of an aircraft with a maximum seat configuration of 6 including the pilot seat, with 6 adults and one babe in arms on board. The 6 adults cost share equally and the baby gets a freebie. I reckon that flight was “substantially similar to” a flight that fell within the definition in CAR 2(7A). Others may have a different opinion. Absent an authoritative decision by a court or tribunal, these matters will remain the subject of perennial arguments.
And note well: That flight could still fall within the scope of a ‘cost-sharing’ flight under the current rules, because the definition does not set a maximum POB number. It sets a maximum seat configuration number. Maximum seat configuration, including the pilot, of 6, 6 adults including the pilot and 1 babe in arms by my maths equals 7 POB.
You are grossly overthinking this. Various companies have used private aircraft under private rules throughout the years for many uses that would qualify as a private operation in which way more that 6 passengers were on board. The reason the cap is 6 for cost sharing is that those pilots who like to 'undercut' the industry would come up with ingenious ways to build hours for next to nothing flying Chieftains etc on regular routes charging half of what an airline does. Even making a bit of cash with dodgy accounting. Basically what Uber is doing to the taxi/hire car industry. 6 is a nice limit to say, yeah get some friends and hire a plane for a holiday share the cost no problem, good chance they are all aware that its a private flight and know the pilot and that its not some quasi airline operation.
That's one smart infant to have enough cash to contribute to the flight willingly.
But here's a link to another part of law possibly to come in to effect; Why is 6 seats cost share acceptable safety wise, but 4 seats will be say a limit on drivers licence standard medicals. But I can drive a 12 seat road vehicle on a standard drivers licence and medical... That's where the arbitrary nature of these rules start to stand out. I'm allowed to jeopardize 12 people on the road, 4 people in flight for the same medical requirements or 6 people if i want to cost share, 2 people if i want to build my own small plane and so on....
And note well: That flight could still fall within the scope of a ‘cost-sharing’ flight under the current rules, because the definition does not set a maximum POB number. It sets a maximum seat configuration number. Maximum seat configuration, including the pilot, of 6, 6 adults including the pilot and 1 babe in arms by my maths equals 7 POB.
But here's a link to another part of law possibly to come in to effect; Why is 6 seats cost share acceptable safety wise, but 4 seats will be say a limit on drivers licence standard medicals. But I can drive a 12 seat road vehicle on a standard drivers licence and medical... That's where the arbitrary nature of these rules start to stand out. I'm allowed to jeopardize 12 people on the road, 4 people in flight for the same medical requirements or 6 people if i want to cost share, 2 people if i want to build my own small plane and so on....
Costs do not have to be shared equally by all POB in order for a flight to satisfy the current definition of 'cost sharing'. That element of the definition is: "the pilot in command pays an amount of the direct costs of the flight that is at least equal to the amount that would be paid by each person if the direct costs were evenly divided between all persons on board".
I know the answer to the question put by the OP (as do you). I just have to go through the drudgery of getting CASA to provide the answer in writing.
I know the answer to the question put by the OP (as do you). I just have to go through the drudgery of getting CASA to provide the answer in writing.
Why is 6 seats cost share acceptable safety wise, but 4 seats will be say a limit on drivers licence standard medicals. But I can drive a 12 seat road vehicle on a standard drivers licence and medical... That's where the arbitrary nature of these rules start to stand out. I'm allowed to jeopardize 12 people on the road, 4 people in flight for the same medical requirements or 6 people if i want to cost share, 2 people if i want to build my own small plane and so on....
And note well: That flight could still fall within the scope of a ‘cost-sharing’ flight under the current rules, because the definition does not set a maximum POB number. It sets a maximum seat configuration number. Maximum seat configuration, including the pilot, of 6, 6 adults including the pilot and 1 babe in arms by my maths equals 7 POB.
That may well be "some of the reasoning" behind the max seat configuration element of the definition. But, as always, the solution to one problem almost invariably creates at least one other problem. The plain words of the current definition of a flight that is 'cost-sharing' do not set a POB limit on 'cost-sharing' flights.
What's to stop a "backyard skydiving" "crowd" from stripping a C206 and cramming 8 skydivers into it?
What's to stop a "backyard skydiving" "crowd" from stripping a C206 and cramming 8 skydivers into it?
That may well be "some of the reasoning" behind the max seat configuration element of the definition. But, as always, the solution to one problem almost invariably creates at least one other problem. The plain words of the current definition of a flight that is 'cost-sharing' do not set a POB limit on 'cost-sharing flights'.
Please slow down and read the bits of the legislation I'm posting. Under the current definition of a flight that is 'cost-sharing' it is not necessary for each and every one of the POB to share the costs equally.
I say again:
That element of the definition is: "the pilot in command pays an amount of the direct costs of the flight that is at least equal to the amount that would be paid by each person if the direct costs were evenly divided between all persons on board".
Please read that twice.
You work out the direct costs (as defined), divide them by the number of POB, and to satisfy that element of the definition the pilot in command has pay at least that amount.
Example: The direct costs of a flight are $7,000 and there are 7 POB on board including a babe in arms. To satisfy the element of the definition, the PIC has to pay at least $7,000 [sorry: at least $1,000]. Full stop. It's irrelevant that the babe in arms pays nothing.
I say again:
That element of the definition is: "the pilot in command pays an amount of the direct costs of the flight that is at least equal to the amount that would be paid by each person if the direct costs were evenly divided between all persons on board".
Please read that twice.
You work out the direct costs (as defined), divide them by the number of POB, and to satisfy that element of the definition the pilot in command has pay at least that amount.
Example: The direct costs of a flight are $7,000 and there are 7 POB on board including a babe in arms. To satisfy the element of the definition, the PIC has to pay at least $7,000 [sorry: at least $1,000]. Full stop. It's irrelevant that the babe in arms pays nothing.
What's to stop a "backyard skydiving" "crowd" from stripping a C206 and cramming 8 skydivers into it?
That's some of the most concentrated folklore I've read in long time. Thanks for the belly laugh, 43!
Anyway, back to the PPL passenger limit. Another example...
Take an aircraft with a maximum seat configuration of 6 including the pilot’s seat. Along come two couples with two children each. By my maths that equals 8.
AC91-18v1.1 says, at para 3.2, citing Part 91 MOS sub-section 20.03(2):
So we have a six seat aircraft in which one of the adults is the PIC and holder of a PPL, her husband is in the front right seat, the other couple occupy the two second row seats, two children are seated side by side in the left seat of the third row and the other two children are seated side by side in the right seat of the third row, in accordance with the AC and MOS.
The direct costs of the flight are $8,000. The PIC pays $1,000 of the direct costs. The PIC is not remunerated. The flight is not advertised to the general public.
I reckon that’s a ‘cost-sharing’ flight within the scope of the current definition, even though there were 8 POB and the children didn’t contribute a cent towards the direct costs of the flight, and the PIC can be the holder of just a PPL. Please tell me why I’m wrong.
For convenience, here’s the current definition:
Do I need to go through the exercise using the same aircraft but with two adult friends with 4 children each, two to a seat in accordance with the AC and MOS, to show that there is no 6 POB limit even on flights that are cost-sharing?
Anyway, back to the PPL passenger limit. Another example...
Take an aircraft with a maximum seat configuration of 6 including the pilot’s seat. Along come two couples with two children each. By my maths that equals 8.
AC91-18v1.1 says, at para 3.2, citing Part 91 MOS sub-section 20.03(2):
3.2 Restraint of two children occupying one seat
3.2.1 Two children may occupy one seat and be restrained by one seatbelt, provided the following applies: [footnote reference to MOS sub-section 20.03(2)]
− the children are seated side-by-side
− their combined weight is not more than 77 kg
− the seatbelt is a lap belt that restrains both children in the seat when fastened.
3.2.1 Two children may occupy one seat and be restrained by one seatbelt, provided the following applies: [footnote reference to MOS sub-section 20.03(2)]
− the children are seated side-by-side
− their combined weight is not more than 77 kg
− the seatbelt is a lap belt that restrains both children in the seat when fastened.
The direct costs of the flight are $8,000. The PIC pays $1,000 of the direct costs. The PIC is not remunerated. The flight is not advertised to the general public.
I reckon that’s a ‘cost-sharing’ flight within the scope of the current definition, even though there were 8 POB and the children didn’t contribute a cent towards the direct costs of the flight, and the PIC can be the holder of just a PPL. Please tell me why I’m wrong.
For convenience, here’s the current definition:
cost‑sharing: a flight is a cost‑sharing flight if:
(a) the flight is conducted using an aircraft with a maximum seat configuration of not more than 6, including the pilot’s seat; and
(b) the pilot in command is not remunerated for the flight; and
(c) the pilot in command pays an amount of the direct costs of the flight that is at least equal to the amount that would be paid by each person if the direct costs were evenly divided between all persons on board; and
(d) the flight is not advertised to the general public.
(a) the flight is conducted using an aircraft with a maximum seat configuration of not more than 6, including the pilot’s seat; and
(b) the pilot in command is not remunerated for the flight; and
(c) the pilot in command pays an amount of the direct costs of the flight that is at least equal to the amount that would be paid by each person if the direct costs were evenly divided between all persons on board; and
(d) the flight is not advertised to the general public.
Last edited by Clinton McKenzie; 13th Jan 2023 at 02:02.
APF rules state you only need a PPL to conduct their jump operations, with some restrictions on minimum hours. There are no rules on aircraft capacity only that it must have restraints/seating suitable for the amount of occupants. Unless CASA has introduced some new rules that PPLs can work for commercial operations.
After reading this in CASRs, I resolved not to bother to try to work out what rules apply to parachute operations. Life is way too short.
Summary: Dog's breakfast.
202.502 Transitional—parachute descents authorised by CASA
(1) Despite regulation 202.501, Part 105 does not apply in relation to a parachute descent if the descent is authorised by, and conducted in accordance with:
(a) instrument CASA 263/02 or instrument CASA 36/19 (as either is in force from time to time); and
(b) if the descent is being undertaken by a trainee parachutist or tandem parachutist—instrument CASA 11/17 or instrument CASA 84/18 (as either is in force from time to time); and
(c) subsection 15 of Civil Aviation Order 20.16.3 (as in force immediately before 2 December 2021).
(2) If Part 105 does not apply to a parachute descent because of the operation of subregulation (1), Part 105 also does not apply to any other parachuting activity undertaken for the purposes of the descent.
(3) Despite the repeal of regulation 152 of CAR by Schedule 2 to the amending regulations, instruments CASA 263/02 and CASA 36/19 (as in force immediately before the commencement of Schedule 2 to the amending regulations) continue in force (and may be dealt with) after that commencement as if that repeal had not happened.
(4) This regulation is repealed at the end of 1 December 2023.
(1) Despite regulation 202.501, Part 105 does not apply in relation to a parachute descent if the descent is authorised by, and conducted in accordance with:
(a) instrument CASA 263/02 or instrument CASA 36/19 (as either is in force from time to time); and
(b) if the descent is being undertaken by a trainee parachutist or tandem parachutist—instrument CASA 11/17 or instrument CASA 84/18 (as either is in force from time to time); and
(c) subsection 15 of Civil Aviation Order 20.16.3 (as in force immediately before 2 December 2021).
(2) If Part 105 does not apply to a parachute descent because of the operation of subregulation (1), Part 105 also does not apply to any other parachuting activity undertaken for the purposes of the descent.
(3) Despite the repeal of regulation 152 of CAR by Schedule 2 to the amending regulations, instruments CASA 263/02 and CASA 36/19 (as in force immediately before the commencement of Schedule 2 to the amending regulations) continue in force (and may be dealt with) after that commencement as if that repeal had not happened.
(4) This regulation is repealed at the end of 1 December 2023.
So I'm sure it's not just me that suspects CASA spent tax-payer $$$ producing the PEGs just so they could understand their own regulations..
CASA parachuting MOS (part 105) are up for public consultation.
https://consultation.casa.gov.au/reg...mpaign=Fatigue
https://consultation.casa.gov.au/reg...mpaign=Fatigue
Ironic.
Hot off the press (yesterday):
My supplementary questions:
Question 1:
In response to my specific question 2, you say: “Answer 2: Based on the scenario described in the enquiry, the flight is an air transport operation, and the flight must comply with Parts 91, 119 and 135 of the Civil Aviation Safety Regulations 1998 (CASR). This flight operation would also need to meet various other requirements in the CASR and Civil Aviation Regulations 1988 (CAR).”
The scenario described in my enquiry does not involve any hire or reward. How can an operation that does not involve any hire or reward be an “air transport operation”, given the definition of that term you (and I) quoted?
Answer 1:
The concept of “hire or reward” is a very broad concept. This concept is discussed in the CASR Part 119 Acceptable Means of Compliance (AMC):
The key criteria for an air transport operation is that it be conducted for hire or reward. In most cases, the concept of hire will be clear, so that if the operator is receiving payment to conduct the flight, that element is met. It can be difficult however to identify if an operation is conducted for reward, though that is a broad concept. The receipt of a reward could involve, but is not limited to, any of the following:
• where the operator receives anything of value
• goodwill in the form of current or future economic benefit.
A reward need not require a profit or profit motive or the actual payment of monies.
If your passengers are giving you money (or other compensation) towards the expenses of conducting the flight, you are receiving a reward for that flight, whether or not a profit is made. Such a flight is being conducted for hire or reward. If, however, the flight is a “cost-sharing” flight (as defined in the Part 1 Definitions of the CASR) it is an operation that is not required to be under the authority of an AOC under Part 119 (as it is expressly excluded from the definition of “passenger transport operation” under CASR Part 2 Dictionary, clause 75(2)(b)). A “cost-sharing” flight is a flight that is conducted using an aircraft with a maximum seat configuration of not more than 6, including the pilots seat. If a bigger aircraft is used, the flight is not defined as a “cost-sharing” flight. If you are conducting a flight in an aeroplane with a maximum seat configuration of 9 (including the pilot) and you and your passengers share the direct costs of the flight evenly divided between you, the flight is NOT a “cost-sharing” flight. Such a flight is characterised as a “passenger transport operation” (see CASR Part 2 Dictionary, clause 75) that is conducted for hire or reward which is, therefore, an “Australian air transport operation” under CASR Part 2 Dictionary, clause 3 and CASR 119.010.
Question 2:
You cite the “Part 119 of CASR Acceptable Means of Compliance” as if it is legislation. Have you read page 1 of that document? In any event, the scenario described in my enquiry does not involve any hire or reward.
Answer 2:
See response above, the scenario in your enquiry does involves a flight for reward.
Question 3:
Or are you in effect asserting that CASA’s position is that all flights that are “cost sharing” as defined are conducted for “reward” within the meaning of that term in the definition of “air transport operation”? (And I respectfully urge caution and very careful consideration before answering that supplementary question.)
Answer 3:
A “cost-sharing” flight that is conducted in an aircraft with a maximum seat configuration of 6 or less is still an operation for high or reward. However, as it meets the definition of “cost-sharing” it is not a flight that is included in the definition of an Australian air transport operation. A flight, for hire or reward, that is conducted in an aircraft with maximum seat configuration of more than 6 does not meet the definition of “cost-sharing” and is therefore included in the definition of an Australian air transport operation.
Question 4:
You say in response to question 5: “Answer 5: The cost-sharing flight provision in the civil aviation legislation has always had a limitation of having a maximum seat configuration of not more than 6 seats, including the pilot’s seat.”
What you call “the cost-sharing provision” in the 1988 regulations did not operate to limit the number of passengers in private operations, even in ‘cost-sharing’ operations. Under the 1988 regulations, an aircraft flying or operating for the purpose of, or in the course of any of the kinds of activities listed in CAR 2(7)(d) was deemed to be employed in private operations. The carriage of persons in accordance with what you call the “cost-sharing provision” – CAR 2(7A) – was only one the kinds of activities on the list in CAR 2(7)(d). And, most importantly in the context of my questions, the (usually overlooked) last item on the list was “any other activity of a kind substantially similar to any of” the other items on the list.
Answer 4:
CASA has reviewed the previous answer. “Cost-sharing” flights in CAR 2(7A)(d)(v) were relevant flights in an aircraft where the number of persons on the flight, including the operating crew, did not exceed 6. CASA notes the previous response that ‘cost-sharing flight provision in the civil aviation legislation has always had a limitation of having a maximum seat configuration of not more than 6 seats’ was therefore not correct, as CAR 2(7A) did not reference seating configuration, but just the number of persons.
In terms of your question, CASA acknowledges CAR 2(7A) was not an exhaustive statement as to what may be a private operation. Whilst CAR 2(7)(d)(viii) also treated “any other activity of a kind substantially similar to any of those specified in subparagraphs (i) to (vi) (inclusive)” as a private operation, in the context of the express terms of CAR 2(7A), any operation outside of the terms of that provision could not be regarded as a cost-sharing flight for that provision. However, CASA also acknowledges CAR 2(7)(d)(viii) provided for a further category of “substantially similar” operations, with the result that an operation substantially similar to that set out in CAR 2(7)(d)(v), could also have been treated as a private operation. Whether an operation is substantially similar was a matter CASA decided on a case by case basis, when required to.
Question 5:
Were your answers below cleared by Dr Aleck?
Answer 5:
The responses in this email have been approved by the Legal Advisory and Drafting Branch.
In response to my specific question 2, you say: “Answer 2: Based on the scenario described in the enquiry, the flight is an air transport operation, and the flight must comply with Parts 91, 119 and 135 of the Civil Aviation Safety Regulations 1998 (CASR). This flight operation would also need to meet various other requirements in the CASR and Civil Aviation Regulations 1988 (CAR).”
The scenario described in my enquiry does not involve any hire or reward. How can an operation that does not involve any hire or reward be an “air transport operation”, given the definition of that term you (and I) quoted?
Answer 1:
The concept of “hire or reward” is a very broad concept. This concept is discussed in the CASR Part 119 Acceptable Means of Compliance (AMC):
The key criteria for an air transport operation is that it be conducted for hire or reward. In most cases, the concept of hire will be clear, so that if the operator is receiving payment to conduct the flight, that element is met. It can be difficult however to identify if an operation is conducted for reward, though that is a broad concept. The receipt of a reward could involve, but is not limited to, any of the following:
• where the operator receives anything of value
• goodwill in the form of current or future economic benefit.
A reward need not require a profit or profit motive or the actual payment of monies.
If your passengers are giving you money (or other compensation) towards the expenses of conducting the flight, you are receiving a reward for that flight, whether or not a profit is made. Such a flight is being conducted for hire or reward. If, however, the flight is a “cost-sharing” flight (as defined in the Part 1 Definitions of the CASR) it is an operation that is not required to be under the authority of an AOC under Part 119 (as it is expressly excluded from the definition of “passenger transport operation” under CASR Part 2 Dictionary, clause 75(2)(b)). A “cost-sharing” flight is a flight that is conducted using an aircraft with a maximum seat configuration of not more than 6, including the pilots seat. If a bigger aircraft is used, the flight is not defined as a “cost-sharing” flight. If you are conducting a flight in an aeroplane with a maximum seat configuration of 9 (including the pilot) and you and your passengers share the direct costs of the flight evenly divided between you, the flight is NOT a “cost-sharing” flight. Such a flight is characterised as a “passenger transport operation” (see CASR Part 2 Dictionary, clause 75) that is conducted for hire or reward which is, therefore, an “Australian air transport operation” under CASR Part 2 Dictionary, clause 3 and CASR 119.010.
Question 2:
You cite the “Part 119 of CASR Acceptable Means of Compliance” as if it is legislation. Have you read page 1 of that document? In any event, the scenario described in my enquiry does not involve any hire or reward.
Answer 2:
See response above, the scenario in your enquiry does involves a flight for reward.
Question 3:
Or are you in effect asserting that CASA’s position is that all flights that are “cost sharing” as defined are conducted for “reward” within the meaning of that term in the definition of “air transport operation”? (And I respectfully urge caution and very careful consideration before answering that supplementary question.)
Answer 3:
A “cost-sharing” flight that is conducted in an aircraft with a maximum seat configuration of 6 or less is still an operation for high or reward. However, as it meets the definition of “cost-sharing” it is not a flight that is included in the definition of an Australian air transport operation. A flight, for hire or reward, that is conducted in an aircraft with maximum seat configuration of more than 6 does not meet the definition of “cost-sharing” and is therefore included in the definition of an Australian air transport operation.
Question 4:
You say in response to question 5: “Answer 5: The cost-sharing flight provision in the civil aviation legislation has always had a limitation of having a maximum seat configuration of not more than 6 seats, including the pilot’s seat.”
What you call “the cost-sharing provision” in the 1988 regulations did not operate to limit the number of passengers in private operations, even in ‘cost-sharing’ operations. Under the 1988 regulations, an aircraft flying or operating for the purpose of, or in the course of any of the kinds of activities listed in CAR 2(7)(d) was deemed to be employed in private operations. The carriage of persons in accordance with what you call the “cost-sharing provision” – CAR 2(7A) – was only one the kinds of activities on the list in CAR 2(7)(d). And, most importantly in the context of my questions, the (usually overlooked) last item on the list was “any other activity of a kind substantially similar to any of” the other items on the list.
Answer 4:
CASA has reviewed the previous answer. “Cost-sharing” flights in CAR 2(7A)(d)(v) were relevant flights in an aircraft where the number of persons on the flight, including the operating crew, did not exceed 6. CASA notes the previous response that ‘cost-sharing flight provision in the civil aviation legislation has always had a limitation of having a maximum seat configuration of not more than 6 seats’ was therefore not correct, as CAR 2(7A) did not reference seating configuration, but just the number of persons.
In terms of your question, CASA acknowledges CAR 2(7A) was not an exhaustive statement as to what may be a private operation. Whilst CAR 2(7)(d)(viii) also treated “any other activity of a kind substantially similar to any of those specified in subparagraphs (i) to (vi) (inclusive)” as a private operation, in the context of the express terms of CAR 2(7A), any operation outside of the terms of that provision could not be regarded as a cost-sharing flight for that provision. However, CASA also acknowledges CAR 2(7)(d)(viii) provided for a further category of “substantially similar” operations, with the result that an operation substantially similar to that set out in CAR 2(7)(d)(v), could also have been treated as a private operation. Whether an operation is substantially similar was a matter CASA decided on a case by case basis, when required to.
Question 5:
Were your answers below cleared by Dr Aleck?
Answer 5:
The responses in this email have been approved by the Legal Advisory and Drafting Branch.
Thank you for that supplementary response. CASA’s opinion as to the breadth of the scope of the word “reward” in the relevant provisions is noted. It follows, in CASA’s opinion, that even flights that fall within the definition of “cost sharing” could be for “reward” but, as a consequence of their express exclusion from the definition, the flights are not a “passenger transport operation”.
A couple more supplementary questions if I may.
As background, I used to be on the list of pilots available for flights arranged by Angel Flight Australia but I started flying an ‘experimental’ aircraft. However, I intend to again gain access to a ‘normal’ category aircraft (with a maximum seat configuration of 6) for various operations and might again nominate for the list.
I note that according to Angel Flight Australia’s website: “Angel Flight Australia subsidises fuel used on flights, negotiates the waiver of landing fees at many supporting airports around the country, and arranges the credit of any air navigation charges, thanks to the support of Airservices Australia. Donations to Angel Flight are used to subsidise fuel costs.” I also note that I would not be the registered operator of the aircraft that I would fly for the purposes flights arranged by Angel Flight Australia. I would not be ‘remunerated’ and the flights would not be advertised to the general public. The passengers carried would pay nothing to anyone for the flights.
Question 1: Would the subsidisation by Angel Flight Australia of the cost of the fuel I consume during a flight arranged by them constitute a “reward” in CASA’s opinion?
Question 2: If the answer to question 1 is ‘yes’, and the outcome of the subsidisation is that I end up paying an amount of the “direct costs” of the flight that is less than the amount that would be paid by each person if the direct costs were evenly divided by all persons on board, is the flight an “air transport operation”?
Question 3: If the answer to question 1 is ‘yes’, and the outcome of the subsidisation is that I end up paying an amount of the ‘direct costs’ of the flight that is at least equal to the amount that would be paid by each person if the direct costs were evenly divided by all persons on board, is the flight an “air transport operation”?
Question 4: If the answer to question 2 is different from the answer to question 3, how do the differing ratios of “direct costs” of the flight paid by me alter the objective risks of the flight?
For question 5, assume instead that I purchase, and am, as an individual, the registered operator of, an aircraft with a maximum seat configuration of 9. A mate of mine and I, as an act of pure charity, utilise the aircraft to conduct twice-daily flights from country town A to city B and back, on which flights any member of the public may fly as passengers (along with me) for free. We advertise the flights. The passengers (other than me) do not pay anyone anything in relation to the flights. I bear the entire costs of the flights. My mate pays nothing to participate and is paid nothing for being PIC.
Question 5: Are the flights described in that scenario an “air transport operation”?
Question 6: If the answer to question 5 is ‘no’, may the holder of a private pilot licence be the PIC of the aircraft (provided the pilot has a rating for the aircraft)?
A couple more supplementary questions if I may.
As background, I used to be on the list of pilots available for flights arranged by Angel Flight Australia but I started flying an ‘experimental’ aircraft. However, I intend to again gain access to a ‘normal’ category aircraft (with a maximum seat configuration of 6) for various operations and might again nominate for the list.
I note that according to Angel Flight Australia’s website: “Angel Flight Australia subsidises fuel used on flights, negotiates the waiver of landing fees at many supporting airports around the country, and arranges the credit of any air navigation charges, thanks to the support of Airservices Australia. Donations to Angel Flight are used to subsidise fuel costs.” I also note that I would not be the registered operator of the aircraft that I would fly for the purposes flights arranged by Angel Flight Australia. I would not be ‘remunerated’ and the flights would not be advertised to the general public. The passengers carried would pay nothing to anyone for the flights.
Question 1: Would the subsidisation by Angel Flight Australia of the cost of the fuel I consume during a flight arranged by them constitute a “reward” in CASA’s opinion?
Question 2: If the answer to question 1 is ‘yes’, and the outcome of the subsidisation is that I end up paying an amount of the “direct costs” of the flight that is less than the amount that would be paid by each person if the direct costs were evenly divided by all persons on board, is the flight an “air transport operation”?
Question 3: If the answer to question 1 is ‘yes’, and the outcome of the subsidisation is that I end up paying an amount of the ‘direct costs’ of the flight that is at least equal to the amount that would be paid by each person if the direct costs were evenly divided by all persons on board, is the flight an “air transport operation”?
Question 4: If the answer to question 2 is different from the answer to question 3, how do the differing ratios of “direct costs” of the flight paid by me alter the objective risks of the flight?
For question 5, assume instead that I purchase, and am, as an individual, the registered operator of, an aircraft with a maximum seat configuration of 9. A mate of mine and I, as an act of pure charity, utilise the aircraft to conduct twice-daily flights from country town A to city B and back, on which flights any member of the public may fly as passengers (along with me) for free. We advertise the flights. The passengers (other than me) do not pay anyone anything in relation to the flights. I bear the entire costs of the flights. My mate pays nothing to participate and is paid nothing for being PIC.
Question 5: Are the flights described in that scenario an “air transport operation”?
Question 6: If the answer to question 5 is ‘no’, may the holder of a private pilot licence be the PIC of the aircraft (provided the pilot has a rating for the aircraft)?
I've been involved in more than few 135 transitions and new applications. I had a pretty good handle on the old rules and what you could and couldn't do but I have found myself having to ask multiple questions of CASA and in some instances, there is no answer or at least not one to certain questions that is apparent without reading ALL the rules as a complete entity. In some circumstances it's been a case of re-write what was there before (for transitioning), cite the new rule in place of the old one(s) and then see what CASA say.
