PPL Passenger Limit in Australia

[43Inches]

Originally Posted by AerialPerspective

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.

CASA hasn't changed much in the respect that any query on a rule has always had a regulatory round about that has many words and no answer. Just the rules are more convoluted now. As I said in another thread the rules will only get an effective interpretation after an incident/ accident occurs.

[Clinton McKenzie]

The cosmic ballet continues. CASA is now confusing itself somewhat, but may not realise it yet. Hardly surprising.

I received answers to my supplementary questions of 24 January 2023 yesterday. Quoted below. For those who do not wish to lose the will to live, skip to question and answer 5 and 6. You will see that CASA agrees that a PPL can be the PIC of an aircraft with a maximum seating capacity of 9.

Short point: There is no prescribed passenger limit on a PPL.

(I chose the scenario for question 5 to demonstrate the ridiculous kinds of outcomes produced by rules that are supposed to draw distinctions on the basis of objective safety risk and the safety of the public.)

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?

Answer 1: CASA does not generally answer questions about other operator’s affairs or other operations. However, CASA can provide a general answer to your question. If a third party provides, dependent on all the circumstances of the arrangement, monies to a pilot to cover some or all of their operating costs to conduct the flight, CASA would generally regard that as the receipt of a reward by the pilot. Prior to 2 December 2021, that arrangement would generally have been regarded as a private operation under CAR 2(7)(d)(v) as the carriage of persons without a charge for the carriage. Section 7AA of CASA EX82/21 – Part 119 of CASR – Supplementary Exemptions and Directions Instrument 2021, continued that position until 24 December 2022. CASR 119.010(2)(d) was also recently inserted, which provides (d) an operation, conducted using an aeroplane or rotorcraft, of a kind prescribed by the Part 119 Manual of Standards for the purposes of this paragraph, is not an Australian air transport operation.

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”?

Answer 2: An air transport operation is not determined by whether the reward would be more or less than the amount than would be paid by a person if the costs were evenly divided by all persons on board. The cost sharing provisions, which have already been explained, also operate according to its own terms.

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”?

Answer 3: See previous answer.

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?

Answer 4: See previous answer.

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. Are the flights described in that scenario an “air transport operation”?

Amswer 5: No. Assuming the pilot receives no payment for the flight, the flights are a private operation because they are not conducted for hire or reward.

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)?

Answer 6: Yes, as the operation is a private operation.

[Clinton McKenzie]

And my latest round of supplementary questions:

I do not understand to whom the word “other” in the first sentence of your answer to question 1 refers: “CASA does not generally answer questions about other operator’s affairs or other operations.”

Question 1: If I put my hand up to conduct a flight for which Angel Flight has called for volunteers, aren’t I the “operator” conducting the “operations” for the purposes of that flight?

Question 2: Is CASA’s opinion that, but for the stuff referred to in the last sentence of the answer provided to question 1, the flight would have to be authorised by an AOC if I now put my hand up to conduct a flight for which Angel Flight has called for volunteers and Angel Flight subsidises part of my fuel costs for the flight?

Question 3: Where do I find a copy of Part 119 Manual of Standards so I can find out what has been prescribed for the purposes of CASR 119.010(2)(d)? My search skills on CASA’s website and FRLI may be becoming a bit rusty, as I have been unable find a copy. My apologies if it’s there and my search skills are inadequate.

As background to my further questions, I note that in answer to my question 2 below, you say: “An air transport operation is not determined by whether the reward would be more or less than the amount than would be paid by a person if the costs were evenly divided by all persons on board. The cost sharing provisions, which have already been explained, also operate according to its own terms.”

Your explanation of the cost sharing provisions, in your email of 23 January 2023, said: “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. [Your “high”] 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.”

Scenario for questions 4 and 5: I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6, including the pilot seat. I have 3 passengers. I am not remunerated for the flight. The flight is not advertised to the general public. I bear the entirety of the direct costs of the flight.

Question 4: Do you comprehend that the flight in that scenario meets the definition of one that is “cost-sharing”? The “entirety” of the direct costs is an amount “that is at least equal to” the amount that would be paid by each person if the direct costs were evenly divided between all POB. It’s an outcome dictated by the laws of mathematics.

Question 5: Where is the “hire or reward” in that scenario?

Scenario for question 6: I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6, including the pilot seat. I have 3 passengers. I am not remunerated for the flight. The flight is not advertised to the general public. I pay 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. The passengers give me $150 to reimburse part of my fuel costs. Just to be clear: $150 is much, much less than 3/4ths of the direct costs (including fuel costs) of the flight in this scenario.

Question 6: Do you comprehend that the flight in that scenario meets the definition of one that is “cost-sharing”?

Scenario for question 7: I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6, including the pilot seat. I have 3 passengers. I am not remunerated for the flight. The flight is not advertised to the general public. I pay 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. Angel Flight gives the passengers $150 to give to me to reimburse part of my fuel costs for the flight. Just to be clear: $150 is much, much less than 3/4ths of the direct costs (including fuel costs) of the flight in this scenario.

Question 7: Do you comprehend that the flight in that scenario meets the definition of one that is “cost-sharing”?

Scenario for question 8: I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6, including the pilot seat. I have 3 passengers. I am not remunerated for the flight. The flight is not advertised to the general public. I pay 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. Angel Flight gives me $150 to reimburse part of my fuel costs for the flight. Just to be clear: $150 is much, much less than 3/4ths of the direct costs (including fuel costs) of the flight in this scenario.

Question 8: Do you comprehend that the flight in that scenario meets the definition of one that is “cost-sharing”?

I get it that your opinion is that e.g. the reimbursement of part of my fuel costs constitutes a “reward”. But you say that, even so, a flight that meets the definition of “cost-sharing” is not a flight that is included in the definition of an Australian air transport operation”. I concur with that conclusion. And all of the scenarios above fall within the scope of a flight that meets the definition of “cost-sharing”, do they not?

Provided the flight is conducted using an aircraft with a maximum seat configuration of not more than 6, including the pilot’s seat, the pilot in command is not remunerated for the flight, the flight is not advertised to the general public and 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, the flight meets the definition of one that is “cost-sharing”. It does not matter who bears the balance, if any, of the “direct costs”. That’s irrelevant to the operation of the definition.

[zegnaangelo]

the way i read CASA's response is that all flights are done for hire and / or reward (including cost -sharing). however because there is a specific carve out for "cost-sharing flights", one may rely on that exemption to capture it under a private operation.

sounds like the default scenario is, everything needs to be licensed/regulated unless there is a specific carve-out for private operations.

but it does sound like a PPL can't go hire a 9 seater plane and take his friends/family for a joy-ride.

[Clinton McKenzie]

Originally Posted by zegnaangelo

the way i read CASA's response is that all flights are done for hire and / or reward (including cost -sharing). however because there is a specific carve out for "cost-sharing flights", one may rely on that exemption to capture it under a private operation.

I think that's a misreading. CASA's answer to my question 5 of 24 January 2023 was: "Assuming the pilot receives no payment for the flight, the flights are a private operation because they are not conducted for hire or reward."

And I suspect that once they've thought about it, CASA will realise that the answer to my most recent questions 4 and 5 will be to the effect that the scenario for the purposes of those questions is a "cost-sharing" flight that is neither for hire nor reward:

Scenario for questions 4 and 5: I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6, including the pilot seat. I have 3 passengers. I am not remunerated for the flight. The flight is not advertised to the general public. I bear the entirety of the direct costs of the flight.

Question 4: Do you comprehend that the flight in that scenario meets the definition of one that is “cost-sharing”? The “entirety” of the direct costs is an amount “that is at least equal to” the amount that would be paid by each person if the direct costs were evenly divided between all POB. It’s an outcome dictated by the laws of mathematics.

Question 5: Where is the “hire or reward” in that scenario?

Originally Posted by zegnaangelo

sounds like the default scenario is, everything needs to be licensed/regulated unless there is a specific carve-out for private operations.

Private operations are licensed and regulated.

Originally Posted by zegnaangelo

but it does sound like a PPL can't go hire a 9 seater plane and take his friends/family for a joy-ride.

That, too, would be a misreading. The fact that the PPL has hired an aircraft for the purpose of taking his friends/family for a joy-ride does not, of itself, turn the flight into one "for hire or reward".

[Clinton McKenzie]

The latest round of answers to my supplementary questions demonstrates to me that CASA’s complex and convoluted Heath Robinson contraption is (unsurprisingly) resulting in CASA confusing itself. I’ll chunk this up in an attempt to reduce the scope for further confusion and potential insanity.

Back on 24 Jan 23 I asked this question:

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?

The first sentence of CASA’s answer to that question, given on 1 Feb 23, was:

CASA does not generally answer questions about other operator’s affairs or other operations.

That confused me. I accordingly asked this question on 2 Feb 23, with a preamble about the cause of my confusion:

I do not understand to whom the word “other” in the first sentence of your answer to question 1 refers: “CASA does not generally answer questions about other operator’s affairs or other operations.”

Question 1: If I put my hand up to conduct a flight for which Angel Flight has called for volunteers, aren’t I the “operator” conducting the “operations” for the purposes of that flight?

The answer CASA gave to that question on 15 Feb 23 was:

Yes.

The implications of that answer obviously got the brains trust to thinking and that seems to have resulted in a HSM, because the answer to my question 2 said in part:

CASA is now aware that the amendment of section 7AA of CASA EX82/21 – Part 119 of CASR – Supplementary Exemptions and Directions Instrument 2021, on 24 December 2022 had the unintended consequence of treating certain flights as air transport operations again, and CASA is presently considering how to address that issue, which is likely to be by a further amendment to the exemption.

Oh dear. An amendment to an amendment required, due to insufficient attention to detail. And let’s pause to note that in 2023 CASA is continuing to regulate by (poorly thought through) exemptions, all of which was supposed to be a thing of the decades-ago past.

I was relieved by the confirmation that my search skills have not deteriorated. I couldn’t find the Part 119 MOS because, in answer to my question 3, CASA said:

CASA has not yet made a Part 119 MOS.

Another example demonstrating that the regulatory reform program is not complete. What is ‘complete’ is the assertion that it is: complete bull****.

The answers immediately above, and CASA’s answers to the remaining five questions demonstrate to me that they are doing a lot of ‘making stuff up’ on the run, to try to patch over the gaps in their Heath Robinson contraption. Here is the scenario I gave for the next two questions:

Scenario for questions 4 and 5: I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6, including the pilot seat. I have 3 passengers. I am not remunerated for the flight. The flight is not advertised to the general public. I bear the entirety of the direct costs of the flight.

Some of you will anticipate I used that scenario for very good reasons. Those reasons arise from the definition of a flight that is ‘cost-sharing’, the definition of ‘passenger transport operation’ and the definition of ’air transport operation’.

If a flight is a ‘cost-sharing’ flight, it is excluded from the definition of ‘passenger transport operation’ and, therefore, won’t be an ‘air transport operation’ (unless CASA pulls a swifty and prescribes them in the Part 119 MOS). Further, an operation that is not for ‘hire or reward’ is not an ‘air transport operation’, even if the operation is a ‘passenger transport operation’ (unless CASA pulls a swifty and prescribes them in the Part 119 MOS or by instrument issued under CASR 201.025).

To try to keep confusion below insanity levels, I will quote the three definitions again, with underlining added:

Definition of passenger transport operation

(1) A passenger transport operation is an operation of an aircraft that involves the carriage of passengers, whether or not cargo is also carried on the aircraft.

(2) Despite subclause (1), an operation is not a passenger transport operation if the operation is:

(a) an operation of an aircraft with a special certificate of airworthiness; or

(b) a cost‑sharing flight; or

(c) a medical transport operation; or

(d) if the registered operator of an aircraft is an individual—an operation of the aircraft:

(i) that involves the carriage of that individual; and

(ii) does not also involve the carriage of other passengers; or

(e) if the registered operator of an aircraft is an individual—an operation of the aircraft:

(i) that involves the carriage of that individual; and

(ii) involves the carriage of other passengers; and

(iii) for which no payment or reward is made or given in relation to the carriage of the other passengers or cargo.

The key point to note is that if your operation falls within the scope of the definition of a ‘cost-sharing flight’, the operation is not a ‘passenger transport operation’.

The definition of a flight that is ‘cost-sharing’ is:

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.

Example 1: For paragraph (c), if the direct costs of a flight are $3,000 and the flight has 5 persons on board, including the pilot, the pilot must pay at least $600 towards the direct costs.

Example 2: For paragraph (d):

(a) an advertisement in a daily national newspaper is an advertisement to the general public; and

(b) an advertisement in a flying club newsletter is not an advertisement to the general public.

The key points to note are, first, that the underlined element does not say anything about who - other than the pilot – must bear the direct costs of the flight. It says nothing about who else, if anyone, has to bear the balance, if any, of the direct costs. The second point – and the reason I said “if anyone” and “if any” in the last sentence – is that if the PIC meets the entirety of the direct costs of the flight, the PIC has literally paid 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 no further direct costs are borne by anyone.

Now let’s look at the scenario I gave again, and ‘plug’ the facts into the definition of a flight that is ‘cost-sharing’:

I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6 including the pilot seat – looks to me very much like a tick in (a) of the definition.

I have 3 passengers – the definition does not say anything about the number of POB, except for its relevance to the calculation of the amount of the fixed costs which the PIC must pay to satisfy (c)

I am not remunerated for the flight – looks to me very much like a tick in (b) of the definition.

The flight is not advertised to the general public – looks to me very much like a tick in (d) of the definition.

I bear the entirety of the direct costs of the flight – looks to me very much like a tick in (c) of the definition.

My question 4 to CASA was:

Do you comprehend that the flight in that scenario meets the definition of one that is “cost-sharing”?

Before providing the answer, I suggest you make sure you’re safely seated.

CASA’s answer to that was:

No.

Double check that you’re still comfortably seated. Read the definition of ‘cost-sharing’ again and read the scenario again. Then read the question and CASA’s answer again. CASA reckons the scenario is not a ‘cost-sharing’ flight.

My question 4 was:

Where is the hire and reward in that scenario?

CASA’s answer to that question was:

See previous answer.

Wait a second: CASA's answer to my question 5 of 24 January 2023 was: "Assuming the pilot receives no payment for the flight, the flights are a private operation because they are not conducted for hire or reward." In the scenario I gave above, the PIC pays for everything. No one pays the PIC anything. There is no way to coherently and credibly conjure PIC reward or remuneration out of the scenario.

CASA provided no reasoning to support either of its answers to my questions 4 and 5. I will make an educated guess as to why: The scenario caused the brains trust to have another HSM, any reasoning they were inclined to provide as to why the above scenario is not a ‘cost-sharing’ flight would have been pretty unconvincing, so best instead to just in effect assert it’s not. My guess is that they had a group frown and conjured some implication out of the word ‘sharing’ such that ‘someone else’ must at least ‘share’ ‘a bit’ of the direct costs. Problem solved for CASA because then CASA can also say the ‘bit’ ‘chipped in’ is ‘reward’ or, as we’ll see, even ‘remuneration’. (Alas, one problem solved on that on-the-run reasoning creates other problems for CASA...)

Even if it is correct in law to draw an implication out of the word ‘sharing’ such that ‘someone else’ must at least ‘share’ ‘a bit’ of the direct costs along with the PIC, it would be a distinction with no consequences for objective safety risk. So you’re not a cost-sharing flight if you as PIC bear all of the direct costs of the flight, and you must therefore get an AOC, but you are a cost-sharing flight if someone chips in $1 for the direct costs and you as PIC bear the rest, and you therefore you do not need an AOC.

Are you feeling all the safety oozing out of this?

Here's why I reckon they had an HSM: If the flight in the scenario is a cost-sharing flight – which I reckon it is – and is not a flight for hire or reward – I don’t reckon it is a flight for hire or reward - some ‘interesting’ consequences flow. For example, if I change just one element of the scenario – change the aircraft to one with a maximum seat configuration of 9 including the pilot seat – the result is that the flight is no longer one that satisfies the definition of ‘cost-sharing’. But that does not turn the flight into one ‘for hire or reward’. I as PIC am still bearing the entirety of the direct costs of the flight. And if it’s not one for hire or reward, it’s not an ‘air transport operation’ (unless CASA pulls a swifty when it gets around to completing the Part 119 MOS or issues an instrument under CASR 201.025).

Again for convenience, here’s the definition of ‘air transport operation’ with the important bit for present purposes underlined:

Definition of air transport operation

(1) An air transport operation is a passenger transport operation, a cargo transport operation or a medical transport operation, that:

(a) is conducted for hire or reward; or

(b) is prescribed by an instrument issued under regulation 201.025.

(2) Despite subclause (1), an air transport operation does not include an aerial work operation or a balloon transport operation.

I can therefore understand why CASA will want to continue to pretend that all ‘cost-sharing’ flights are for ‘hire or reward’, even if the PIC bears the entirety of the direct costs of the flight, and that a flight for which the pilot bears the entirety of the fixed costs is not a ‘cost-sharing’ flight.

I will draft some supplementary questions to ascertain whether CASA has thought through the implications of that. But don’t break your brains yet, because there’s more silliness to come.

My question 6 and its scenario were:

I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6, including the pilot seat. I have 3 passengers. I am not remunerated for the flight. The flight is not advertised to the general public. I pay 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. The passengers give me $150 to reimburse part of my fuel costs. Just to be clear: $150 is much, much less than 3/4ths of the direct costs (including fuel costs) of the flight in this scenario. Question 6: Do you comprehend that the flight in that scenario meets the definition of one that is “cost-sharing”?

CASA’s answer:

Yes.

Hooray! But not surprising. This is safe ground for CASA in the context of its opinion on the interpretation of the relevant provisions. A ‘bit’ of the direct costs have been borne by someone other than the PIC, the PIC has still paid an amount 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 and CASA can characterise the ‘bit’ chipped in as ‘reward’.

But then the silliness begins. I’ll paste the final questions and answers with some added underlining, but the short point is that CASA reckons that if the amount ‘chipped in’ to meet a ‘bit’ of the direct costs of the flight is chipped in by someone other than the POB, that is remuneration of the PIC. That's a lot of words found by CASA somewhere between the lines of the definition of 'cost-sharing' flight.

Question 7: I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6, including the pilot seat. I have 3 passengers. I am not remunerated for the flight. The flight is not advertised to the general public. I pay 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. Angel Flight gives the passengers $150 to give to me to reimburse part of my fuel costs for the flight. Just to be clear: $150 is much, much less than 3/4ths of the direct costs (including fuel costs) of the flight in this scenario. Question 7: Do you comprehend that the flight in that scenario meets the definition of one that is “cost-sharing”?

Answer 7: No, as CASA would regard the payment from Angel Flight through the passengers to be remuneration to the pilot for the flight. This is because the payment from the passenger is effectively being made through or by a third party. CASA considers that payment arrangements for a cost-sharing flight be only as between the participants of the flight.

Question 8: I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6, including the pilot seat. I have 3 passengers. I am not remunerated for the flight. The flight is not advertised to the general public. I pay 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. Angel Flight gives me $150 to reimburse part of my fuel costs for the flight. Just to be clear: $150 is much, much less than 3/4ths of the direct costs (including fuel costs) of the flight in this scenario. Question 8: Do you comprehend that the flight in that scenario meets the definition of one that is “cost-sharing”?

Answer 8: No, as the payment to the pilot is received from a third party, that payment would be treated by CASA as remuneration of the pilot.

So, to summarise CASA’s view:

If I take a mate’s son and daughter for a flight and I meet the entirety of the direct costs of the flight, that is not in any circumstances a ‘cost-sharing’ flight.

If, instead, my mate’s son and daughter each give me 50 cents out of their piggy banks to pay a tiny fraction of the fuel costs after I refuel after the flight, and I meet the rest of the direct costs, that is a flight that can be a ‘cost-sharing’ flight. The $1 is ‘reward’.

If, instead, my mate gives me $1 at the fuel bowser, that is not in any circumstances a ‘cost-sharing’ flight. The $1 is ‘remuneration’ of the PIC.

The different regulatory consequences of the different sources of that $1 are astonishing. The different safety consequences are not obvious to me.

[josephfeatherweight]

Clinton, your post above is truly eye-watering and does a great job of summarising (for just ONE example of the ridiculous Regulations) how nuts the entire suite of Regulations is.
Thanks for taking the time to put this together and for your relentless pursuit for clarity!

[Sunfish]

The different regulatory consequences of the different sources of that $1 are astonishing. The different safety consequences are not obvious to me.

Well the different safety consequences are obvious to me... Thinking back to three twenty somethings flying in an overloaded Tri Pacer around Australia, sleeping under the wing. We had carefully budgeted for fuel but that didn't work out and there were various long distance calls to the Bank of Dad. The Dads kept us airborne.

So now what happens when the pilot realises that he may have to pay for her desired fuel load with a parental issued credit card or perhaps a corporate card or carnet and CASA is looking on, already suspicious of your groups bona fides? There are a whole swag of safety related operational decisions , starting with avoidance of "Hot Spots" that must be taken if pilots must contemplate the possibility that CASA will trawl through trip finsnce details.

In addition, how wide is CASA's definition of "reward"? Does it include sexual favors?

[Clinton McKenzie]

Originally Posted by josephfeatherweight

Clinton, your post above is truly eye-watering and does a great job of summarising (for just ONE example of the ridiculous Regulations) how nuts the entire suite of Regulations is.
Thanks for taking the time to put this together and for your relentless pursuit for clarity!

I’d like to say: “It’s a pleasure”, but that would be a lie. I’m trying to get my head around CASA’s opinion as to how provisions which directly affect me (and lots of others) work, so that I can then form my own view on whether CASA is wrong.

For example, if CASA’s opinion is that a flight is not a ‘cost-sharing’ flight if the PIC bears the entirety of the direct costs of the flight, CASA is effectively adding the underlined words to the legislation: “the pilot in command pays an amount of the direct costs of the flight that is at least equal to the amount, but not equal to the total of the combined amounts, that would be paid by each person if the direct costs were evenly divided between all persons on board, and no person other than persons on board pays any amount of the direct costs of the flight. My erstwhile colleague Emeritus Professor Dennis Pearce AO writes Australia’s leading text book on statutory interpretation. On putting words in legislation that aren’t there, it says: yeah nah.

And, at least so far as the subject of this thread is concerned, I’m trying finally to kill, cremate and bury the folklore to the effect that there is, and always was, a 6 POB cap on private operations. CASA has already agreed, for example, that the PIC of my 9 POB ‘charity airline’ can be a PPL.

[43Inches]

If I take a mate’s son and daughter for a flight and I meet the entirety of the direct costs of the flight, that is not in any circumstances a ‘cost-sharing’ flight.

Makes sense as the flight is just a straight forward private operation, the Pilot or Operator bears 100% of the costs with no contributions. There is no seat limitation as you are paying for the whole thing so can't run a quasi air service operation under the guise of cost sharing.

If, instead, my mate’s son and daughter each give me 50 cents out of their piggy banks to pay a tiny fraction of the fuel costs after I refuel after the flight, and I meet the rest of the direct costs, that is a flight that can be a ‘cost-sharing’ flight. The $1 is ‘reward’.

Yes, because it fits in with the allowable range of a cost sharing flight as stated above, so is a private operation as well being allowed to cost share.

If, instead, my mate gives me $1 at the fuel bowser, that is not in any circumstances a ‘cost-sharing’ flight. The $1 is ‘remuneration’ of the PIC.

Yes, as the person is not occupying a seat or such to make it a cost sharing flight, again restricting the circumstances that a person can take advantage of the law for financial gain. Is it important to draw that line, well yes, in CASAs eyes it limits ways you can get around the hire/reward aspects. I think It's pretty clear that the cost sharing aspect is entirely in law to allow a small group to share the cost of a flight for personal transport for pleasure or recreation or such. You start allowing third parties to contribute up to 5/6th of the flight for freight or such and it starts to run into realms where a PPL can run a quasi air service operation at a slight loss to compete with established operators. So it's not nec a safety question, rather than an operator protection, although it is in part safety as the pilot and aircraft are operating in a lower category of requirements.

And, at least so far as the subject of this thread is concerned, I’m trying finally to kill, cremate and bury the folklore to the effect that there is, and always was, a 6 POB cap on private operations. CASA has already agreed, for example, that the PIC of my 9 POB ‘charity airline’ can be a PPL.

There is no such rule in Australia, and has not been for as long as I have been flying, only a cap on cost sharing ability. We used to run Chieftain cost shares under our charter AoC, each person paid equal, but it was run as an air service operation, the pilot collected the money and paid for the charter of himself and the aircraft at a discounted rate. The pilot could have just hired the aircraft and paid full costs, but not accepted any reward to make it a private operation.

[Clinton McKenzie]

But I think you're missing a fundamental point, 43: On my reading of CASA's answers to my questions, CASA's opinion is that a flight for which the PIC meets the entirety of the direct costs of the flight is 'for hire or reward'. Please read my post #86 again, carefully. I know it's painful, but focus on the answers CASA gave to question 4 and 5, based on a scenario in which the PIC met the entirety of the direct costs.

I will shortly post a copy of my supplementary questions to CASA. Please read them carefully, too, as they try to tease out this issue.

[43Inches]

All I read into it is that CASA has deemed it not a 'cost sharing flight' so it falls under this clause further down which makes in not a 'passenger transport operation'. Where did they claim it was an 'air transport operation'?

(e) if the registered operator of an aircraft is an individual—an operation of the aircraft:

(i) that involves the carriage of that individual; and

(ii) involves the carriage of other passengers; and

(iii) for which no payment or reward is made or given in relation to the carriage of the other passengers or cargo.

[Clinton McKenzie]

Here is the next tranche of supplementary questions to CASA:

Thank you for your email, dated 15 February 2023, answering my questions sent on 2 February 2023.

I am particularly surprised by CASA’s answer to my question 4 and I am not sure what CASA’s answer to my question 5 means. The scenario for those questions was:

Scenario for questions 4 and 5: I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6, including the pilot seat. I have 3 passengers. I am not remunerated for the flight. The flight is not advertised to the general public. I bear the entirety of the direct costs of the flight.

My question 4 was:

Do you comprehend that the flight in that scenario meets the definition of one that is “cost-sharing”?

CASA’s answer to that question was:

No.

I interpret that answer as meaning that CASA’s opinion is that the flight in the above scenario is not one that is ‘cost-sharing’.

I note that in answer to a subsequent question (question 6) in my email of 2 February 2023, based on the same scenario except that the POB other than the PIC met some of the direct costs of the flight, CASA agreed that the flight in that scenario is ‘cost-sharing’. However, I also note that in further questions (7 and 8) based on the same scenario except that persons other than POB met some of the direct costs of the flight, CASA’s opinion is that the flight in those scenarios is not ‘cost-sharing’. This is because, in CASA’s opinion, the payment from a non-POB is ‘remuneration’ of the PIC, notwithstanding that the ‘dollars out of the PIC’s pocket’ in direct costs are the same as if they would be if the POB had met the same costs.

I interpret the combination of CASA’s answers in the context of the different scenarios as meaning that CASA interprets the definition of ‘cost-sharing’ such that:

- A flight will not be ‘cost-sharing’ if the PIC meets the entirety of the direct costs of the flight.

- A flight will not be ‘cost-sharing’ unless at least ‘some’ of the direct costs of the flight are met by POB other than the PIC.

- A flight will not be ‘cost-sharing if any person other than POB meets any of the direct costs of the flight.

Question 1: Can you please confirm that CASA’s opinion is that a flight will not be ‘cost-sharing’ if the PIC meets the entirety of the direct costs of the flight?

Question 2: Can you please confirm that CASA’s opinion is that a flight will not be ‘cost-sharing’ unless at least ‘some’ of the direct costs of the flight are met by POB other than the PIC?

Question 3: Can you please confirm that CASA’s opinion is that a flight will not be ‘cost-sharing’ if any person other than POB meets any of the direct costs of the flight?

Question 4: If it is CASA’s opinion that a flight will not be ‘cost-sharing’ unless at least ‘some’ of the direct costs of the flight are met by POB other than the PIC:

(a) what is the minimum amount of the direct costs to be met by POB other than the PIC?

(b) do each of the POB other than the PIC have to meet some of the direct costs?

Question 5: For example, in CASA’s opinion, can a flight with 3 passengers be a ‘cost-sharing’ flight if I, as PIC, meet at least a quarter of the direct costs of the flight and:

(a) only one of the 3 passengers meets the balance of the direct costs of the flight?

(b) only two of the 3 passengers between them meet the balance of the direct costs of the flight?

(c) all 3 of the passengers between them meet the balance of the direct costs of the flight?

Question 6: If CASA’s opinion is that more than one of the 3 passengers, or all of the 3 passengers, must meet the balance of the direct costs of the flight in order for it to be ‘cost-sharing’, what is CASA’s opinion as to the ratio of those passengers’ payment? For example, must they share, equally, the balance of the direct costs?

Question 7: Does it make any difference to CASA’s answer to questions 5 or 6 if the balance of the direct costs of the flight is $1?

Question 8: If the answer to question 7 is ‘yes’, what is CASA’s opinion as to the minimum balance – expressed in dollar or percentage terms - of the direct costs to be met by one or more of all of the passengers, in order for the flight to be a ‘cost-sharing’ flight?

Question 9: Where does CASA find all these nuances in the plain words of the definition of a ‘cost-sharing’ flight?

On the plain words of that definition, a PIC who meets the entirety of the direct costs of a flight has, literally, paid an amount of the direct costs that is at least equal to the amount that would be paid – note: “would be paid” not “are” paid - by each person if the direct costs were evenly divided – note: “if” not “are” evenly divided - between all POB. The definition has been drafted expressly on the basis that the direct costs do not have to be shared equally by the POB. That was one of the flaws in the previous definition.

The current definition has been expressly drafted on the basis that the PIC’s contribution to direct costs can be greater than the PIC’s nominal ‘share’ of the direct costs. The definition says nothing about who has to bear the balance, if any, of the direct costs of the flight after the PIC has met “at least” the PIC’s nominal ‘share’. And it is patently absurd to suggest that there is some safety consequence arising from the difference between the PIC meeting all of the direct costs compared with, for example, the other POB meeting some of those costs, such that there is some safety justification for reading (many) words into the definition.

As noted at the start of this email, I am not sure what CASA meant by its answer to my question 5 of 2 February 2023. My question 5 was:

Where is the hire and reward in that scenario [in which the PIC meets the entirety of the direct costs of a flight]?

CASA’s answer was:

See previous answer.

The ‘previous answer’ was the one which I interpret as meaning that CASA’s opinion is that a flight in which the PIC meets the entirety of the direct costs is not one that is ‘cost-sharing’.

My confusion arises because it does not automatically follow, from the fact that a flight is not ‘cost-sharing’ (in CASA’s opinion), that the flight is for ‘hire or reward’.

Question 10: If I as PIC meet the entirety of the direct costs of a flight, with the corollary being that no one else is meeting any of the direct costs of the flight, and I receive nothing from anyone for anything connected with the flight, what, in CASA’s opinion, is the precise nature and source of any ‘hire or reward’ connected with that flight? And to close off any potential distractions: I’m flying my own aircraft, so please focus on ‘reward’.

Scenario for question 12: I conduct a flight as PIC in an aircraft with a maximum seat configuration of not more than 6, including the pilot seat. I am not remunerated for the flight. The flight is not advertised to the general public. The direct costs of the flight are borne by the POB, including the PIC, in whatever way CASA reckons satisfies that element of the definition of ‘cost-sharing’.

There are 7 passengers. My partner in the front right seat, a couple of our friends are in the second row and their 4 children are carried in accordance with AC91-18v1.1 para 3.2 in row three.

Question 12: Does CASA comprehend that the flight in this scenario is a ‘cost-sharing’ flight with 8 POB and, as a ‘cost-sharing’ flight, is not a ‘passenger carrying operation’ and, consequently, is not an ‘air transport operation’?

Question 13: If CASA’s answer to question 12 is ‘no’, could CASA explain why its answer is ‘no’?

[43Inches]

What I find more worrying about the definition is the part about the registered operator. So if you hire an aircraft from an Aero Club under a business name can you fly it privately under that definition? As it says the registered operator must be the individual on board. Does that mean the hire agreement makes the hirer now the registered operator for the duration of hire, must the agreement state that?

[Clinton McKenzie]

Well...

Provided the pilot hirer is an 'eligible person', the registration holder can appoint the pilot hirer to be the 'registered operator'. Then the registration holder must give notice of the appointment to CASA within 14 days of the appointment, in accordance with CASR 47.100. And when the pilot gets back on Monday, the registration holder will presumably then cancel the appointment of the pilot hirer to be 'registered operator' of the aircraft and give CASA notice of that cancellation with in 14 days.

Meanwhile, in the real world...

That won't happen and, in any event, doesn't really help for present purposes. The exclusion from the definition of 'passenger transport operation' that you quoted, which exclusion turns on the registered operator being an individual, only applies if that individual is carried as a passenger.

The other exclusion which turns on the registered operator being an individual does not permit the carriage of any passengers.

You need to read the definitions very carefully.

[43Inches]

It does not say as a passenger it just states they are carried on the flight, which means as pilot or passenger. I think they have been too prescriptive in what a registered operator is in regard to calling it a non passenger transport ops. Therefore to even legally be a non passenger transport on a flight carrying only yourself you would have to be assigned as the registered operator, or be under an AOC for airwork or air transport operations or own and operate the aircraft yourself. This more highlights how badly written this section is. Its using the words 'registered operator' that makes all the difference, so if you hire an aircraft for private use you would have to be assigned the registered operator or arrange a 'cost sharing' operation, I've read through a few hire agreements available online, and none of them specify the transfer of 'registered operator'. Some refer to the registered operator being the the one providing the aircraft.

That being said even if the operation is a Passenger Transport Operation it still may not be an Air Transport Operation if it's not for hire or reward, just to complicate things.

[Clinton McKenzie]

The terms of the exclusion to which you refer are:

(e) if the registered operator of an aircraft is an individual—an operation of the aircraft:

(i) that involves the carriage of that individual; and

(ii) involves the carriage of other passengers; and

(iii) for which no payment or reward is made or given in relation to the carriage of the other passengers or cargo.

I note the word "other" in (ii). The only way to give that word any operation is to interpret (i) as meaning the individual is also being carried as a passenger.

I say the solution to the conundrum you perceive is that if the PIC is the only POB, the flight can still satisfy the plain words of the definition of 'cost-sharing' flight. There is no element of that definition that turns on the identity or legal personality of the registered operator of the aircraft. And, as I keep saying, no words in the definition say that the flight is not a cost-sharing flight if the PIC meets the entirety of the direct costs of the flight. Remember: The PIC is also POB for the purposes of the definition.

But I agree with the overarching point about this stuff being 'badly' written, in the sense that, decades in, CASA is still reacting to HSMs caused by outcomes that CASA did not expect.

[43Inches]

I also love the definition of a Private operation being so complicated that you have to read all the sections listed first, to find out if indeed you are not one of those. Yet the definition of a Commercial operation is one that is not a Private operation. So in effect a PPL has to have more knowledge of the regulations than a CPL, because they must rule out what they are not, to know what they are. If ever there was a failure in regulation it would be to make the lowest form of operation the most complicated.

The FAA clearly outlines what a PPL can do in it's PPL privileges and also has a lengthy circular on cost sharing.

§ 61.113 Private pilot privileges and limitations: Pilot in command.

(a) Except as provided in paragraphs (b) through (h) of this section, no person who holds a private pilot certificate may act as pilot in command of an aircraft that is carrying passengers or property for compensation or hire; nor may that person, for compensation or hire, act as pilot in command of an aircraft.

(b) A private pilot may, for compensation or hire, act as pilot in command of an aircraft in connection with any business or employment if:

(1) The flight is only incidental to that business or employment; and

(2) The aircraft does not carry passengers or property for compensation or hire.

(c) A private pilot may not pay less than the pro rata share of the operating expenses of a flight with passengers, provided the expenses involve only fuel, oil, airport expenditures, or rental fees.

(d) A private pilot may act as pilot in command of a charitable, nonprofit, or community event flight described in § 91.146, if the sponsor and pilot comply with the requirements of § 91.146.

(e) A private pilot may be reimbursed for aircraft operating expenses that are directly related to search and location operations, provided the expenses involve only fuel, oil, airport expenditures, or rental fees, and the operation is sanctioned and under the direction and control of:

(1) A local, State, or Federal agency; or

(2) An organization that conducts search and location operations.

(f) A private pilot who is an aircraft salesman and who has at least 200 hours of logged flight time may demonstrate an aircraft in flight to a prospective buyer.

(g) A private pilot who meets the requirements of § 61.69 may act as a pilot in command of an aircraft towing a glider or unpowered ultralight vehicle.

(h) A private pilot may act as pilot in command for the purpose of conducting a production flight test in a light-sport aircraft intended for certification in the light-sport category under § 21.190 of this chapter, provided that -

(1) The aircraft is a powered parachute or a weight-shift-control aircraft;

(2) The person has at least 100 hours of pilot-in-command time in the category and class of aircraft flown; and

(3) The person is familiar with the processes and procedures applicable to the conduct of production flight testing, to include operations conducted under a special flight permit and any associated operating limitations.

(i) A private pilot may act as pilot in command or serve as a required flightcrew member of an aircraft without holding a medical certificate issued under part 67 of this chapter provided the pilot holds a valid U.S. driver's license, meets the requirements of § 61.23(c)(3), and complies with this section and all of the following conditions and limitations:

(1) The aircraft is authorized to carry not more than 6 occupants, has a maximum takeoff weight of not more than 6,000 pounds, and is operated with no more than five passengers on board; and

(2) The flight, including each portion of the flight, is not carried out -

(i) At an altitude that is more than 18,000 feet above mean sea level;

(ii) Outside the United States unless authorized by the country in which the flight is conducted; or

(iii) At an indicated airspeed exceeding 250 knots; and

(3) The pilot has available in his or her logbook -

(i) The completed medical examination checklist required under § 68.7 of this chapter; and

(ii) The certificate of course completion required under § 61.23(c)(3).

[Clinton McKenzie]

That being said even if the operation is a Passenger Transport Operation it still may not be an Air Transport Operation if it's not for hire or reward, just to complicate things.

Precisely one of my points.

That's precisely why I am trying to wangle out of CASA where the 'reward' comes from in a flight for which the PIC bears the entirety of the direct costs. CASA's opinion seems to be that a flight which satisfies all of the elements of the definition of 'cost-sharing', other than the one about who bears what parts of the direct costs because, in CASA's opinion, it does not cover the circumstance where the PIC bears the entirety of the direct costs, is not a 'cost-sharing' flight and is, therefore, a 'passenger transport operation'.

Even if all of that is accepted as correct (based on the plain words of the definition, I don't accept that the flight is not 'cost-sharing') it does not follow that the flight is for 'hire or reward'. If the flight is not 'for hire or reward', it is not an 'air transport operation' even if it's a 'passenger transport operation'.

So, I can 'up' the maximum seat configuration of the aircraft I'm flying to e.g. 9 and everyone will say, correctly, that the flight can't meet the definition of 'cost-sharing' flight. Great. So it's a 'passenger carrying operation'.

But if there's no 'hire or reward' in circumstances in which I bear the entirety of the direct costs of the flight and nobody pays me or gives me anything in connection with the flight, it's not an 'air transport operation'. (This, in turn, is why I'm so concerned about CASA's power to start 'recapturing' operations into Part 119 by simply putting a sentence in a MOS.)

[Sunfish]

Clinton, it's obvious. CASA wishes to have a readily available method of closing down any community based charity operation at will. By that I mean anything remotely equivalent to Angel Flight.

E.g - a network delivering school books or something similar.

Why? Because CASA is threatened by the emergence of any potential centre of resistance to its power. hence the attack on Angel Flight and Glen Buckleys conglomeration of flight schools while leaving SOAR untouched.