A new concept: air transport operations that are not air transport operations
Thread Starter
It is true that OPC is the Commonwealth’s principal provider of legislative drafting and publishing services. (They have a website.) OPC publishes drafting manuals and delivers drafting training. OPC has a quality control (my words) role in what ends up in legislation. I have spent a long time working with drafters in OPC or in agencies with drafters with an OPC background. They would – as would I - dispute that they “turn the perfectly easy reading and understandable regulations that are drafted by CASA SMEs, into the legal verbiage that most normal people cannot understand unless they have done a law degree…”.
SMEs make policy. SMEs are experts in a particular subject matter (the clue is in the name). That subject does not include turning policy into law. Drafters turn policy into law.
A sentence that is “perfectly easy reading and understandable” in isolation can mean something entirely different when plonked into the middle of an Act or some legislative instrument. Drafters try to work out what that “perfectly easy reading and understandable” sentence is intended to achieve, and then try to use words that will achieve what is intended, in the middle of an Act or legislative instrument.
I think a big part of the problem in the CASRs is that they have been drafted on the basis that there must be an offence for contravention of each and every provision that imposes an obligation. Offence provisions are structured in a particular way. But many provisions could be drafted - and in my very strong operational opinion should be drafted - on the basis that breach results in only a potential administrative consequence.
‘Somebody’ in CASA made the policy decision that CASRs will be drafted on the basis that there must be an offence for contravention of each and every provision that imposes an obligation. Being one of policy, it was not a decision made by the drafters.
And to get back the subject matter of this thread: CASR 119.010(1) is "perfectly easy reading and understandable". My concern is what it does, how it does it and the resulting complexity.
SMEs make policy. SMEs are experts in a particular subject matter (the clue is in the name). That subject does not include turning policy into law. Drafters turn policy into law.
A sentence that is “perfectly easy reading and understandable” in isolation can mean something entirely different when plonked into the middle of an Act or some legislative instrument. Drafters try to work out what that “perfectly easy reading and understandable” sentence is intended to achieve, and then try to use words that will achieve what is intended, in the middle of an Act or legislative instrument.
I think a big part of the problem in the CASRs is that they have been drafted on the basis that there must be an offence for contravention of each and every provision that imposes an obligation. Offence provisions are structured in a particular way. But many provisions could be drafted - and in my very strong operational opinion should be drafted - on the basis that breach results in only a potential administrative consequence.
‘Somebody’ in CASA made the policy decision that CASRs will be drafted on the basis that there must be an offence for contravention of each and every provision that imposes an obligation. Being one of policy, it was not a decision made by the drafters.
And to get back the subject matter of this thread: CASR 119.010(1) is "perfectly easy reading and understandable". My concern is what it does, how it does it and the resulting complexity.
The Office of Parliamentary Counsel (OPC) - the federal government’s drafting lawyers are the people who turn the perfectly easy reading and understandable regulations that are drafted by CASA SMEs, into the legal verbiage that most normal people cannot understand unless they have done a law degree…
Further to my last, the 'perfectly easy reading and understandable' part is only any use if what's understandable is also sensible. The embuggerance caused by extra admin burden on small air transport operators, fixed and rotary, is anti-safety, not pro.
Thread Starter
As I said earlier in this thread and have said elsewhere, we’re overburdened by the product of complicators, not simplifiers.
Out of many examples, the rules requiring the promulgation of a NOTAM about a 4’ shrub are “perfectly easy reading and understandable” (and, of course, a criminal offence to breach). Draft NOTAMS about 4’ shrubs need to go the ‘in tray’ of a simplifier, not a complicator, in the NOTAM system and culled before being promulgated, rather than - as is so often the case in so many automated systems these days - the task being outsourced to users by dumping a huge pile of mined soil in their laps and leaving them to try to sift out precious gems or metal which may not be anywhere in there in the first place.
Out of many examples, the rules requiring the promulgation of a NOTAM about a 4’ shrub are “perfectly easy reading and understandable” (and, of course, a criminal offence to breach). Draft NOTAMS about 4’ shrubs need to go the ‘in tray’ of a simplifier, not a complicator, in the NOTAM system and culled before being promulgated, rather than - as is so often the case in so many automated systems these days - the task being outsourced to users by dumping a huge pile of mined soil in their laps and leaving them to try to sift out precious gems or metal which may not be anywhere in there in the first place.
Thread Starter
Here’s a light-hearted exercise that might help make a point. (As a matter of fairness, the sentence I’m about to quote was posted ‘on the run’ and is out of context. But that’s (kinda) the point.)
Duck Pilot: Please tell me whether you reckon the quoted sentence is “perfectly easy reading and understandable“ and, if not, how you would more clearly express what is intended. (Don’t worry about the words in square brackets, unless you want to.)
Duck Pilot: Please tell me whether you reckon the quoted sentence is “perfectly easy reading and understandable“ and, if not, how you would more clearly express what is intended. (Don’t worry about the words in square brackets, unless you want to.)
[I know of at least] 2 regional airlines [who] have recently hired experienced foreign nationals and they weren’t kiwis without too many problems, both on jets and turboprops.
Clinton you beat me to it. In the above quote ( written by someone who once worked at CASA ) we see convoluted language open to misinterpretation.
The statement “ and they weren’t kiwis” is redundant because the writer has already used “foreign nationals”. Full stops to form short sentences and rearranging the order would make sense of it.
Apologies to the literati for stating the obvious.
On the subject of full stops, in certain circles (e.g. advertising) these are no longer used. Removing them makes more space for errant apostrophes.
The statement “ and they weren’t kiwis” is redundant because the writer has already used “foreign nationals”. Full stops to form short sentences and rearranging the order would make sense of it.
Apologies to the literati for stating the obvious.
On the subject of full stops, in certain circles (e.g. advertising) these are no longer used. Removing them makes more space for errant apostrophes.
Thread Starter
From whom would one learn how to write "perfectly easy reading and understandable" English?
Thread Starter
Anyway... here are the answers I received from CASA's 'Regulatory Guidance Centre' on Friday (10 Feb 22).
Answer 1 is the important one. CASA can make 'black' mean 'white'.
Answer 2 is sophistry, particularly given the answer to question 1 and that my question 2 was a closed one. CASA could do it but, because CASA is not presently proposing to do it, CASA is not going to say CASA could do it.
The good news is that the "comprehensive guidance material" addresses any potential confusion.
Answer 1 is the important one. CASA can make 'black' mean 'white'.
Answer 2 is sophistry, particularly given the answer to question 1 and that my question 2 was a closed one. CASA could do it but, because CASA is not presently proposing to do it, CASA is not going to say CASA could do it.
The good news is that the "comprehensive guidance material" addresses any potential confusion.
Question 1: In CASA’s opinion, does CASR 119.010(1)(e) authorise the prescription, in the Part 119 MOS, of an operation which is not an “air transport operation” as defined in the CASR Dictionary, such that the operation becomes an “Australian air transport operation” subject to Part 119 and, potentially, Part 121? For simplicity, assume the operation is one using an Australian registered aeroplane. Please note: This is a closed question.Answer 1: Yes, CASR 119.010(1)(e) is clear in its terms.
Question 2: If the answer to Question 1 is yes, does CASA consider that it has power in principle to, for example, prescribe “cost-sharing” flights as defined in the CASR Dictionary (and which are therefore flights excluded from the definition of “passenger transport operation” and in turn outside the scope of the definition of “air transport operation”) as operations for the purposes of CASR 119.010(1)(e), with the result that “cost-sharing” flights become an “Australian air transport operation”? For simplicity, assume the operation is one using an Australian registered aeroplane. Please note: This is a closed question.
Answer 2: It is highly unlikely CASA could prescribe what is defined in the CASR as a cost-sharing flight, as an air transport operation pursuant to CASR 119.010(1)(e). CASA need not express a concluded view as there is no proposal to do so.
Question 3: Is CASA confident that prescription in a MOS subordinate to CASR is a lawful way of in effect reversing the way in which the regulations operate on their face by, for example, turning an operation that is not an air transport operation as defined in the CASR Dictionary into an Australian air transport operation?
Answer 3: Yes. CASA assumes the validity of aviation legislation unless and until a Court finds the legislation is not valid.
Question 4: Assuming CASA is confident in terms of question 3, does CASA comprehend the confusion that is caused when the outcomes produced by definitions applied on the face of the operative regulations can in effect be altered by sentences buried in Manuals of Standards?
Answer 4: Yes. The aviation legislation has been in three tiers for many years. Civil Aviation Orders pre-dated MOS’s. Sometimes a legislative scheme is also affected by general exemptions or directions. CASA appreciates that such a scheme can sometimes be complicated and for that reason publishes comprehensive guidance material.
This guidance is current at the time it has been provided, however may be subject to change over time or at the discretion of the policy
Question 2: If the answer to Question 1 is yes, does CASA consider that it has power in principle to, for example, prescribe “cost-sharing” flights as defined in the CASR Dictionary (and which are therefore flights excluded from the definition of “passenger transport operation” and in turn outside the scope of the definition of “air transport operation”) as operations for the purposes of CASR 119.010(1)(e), with the result that “cost-sharing” flights become an “Australian air transport operation”? For simplicity, assume the operation is one using an Australian registered aeroplane. Please note: This is a closed question.
Answer 2: It is highly unlikely CASA could prescribe what is defined in the CASR as a cost-sharing flight, as an air transport operation pursuant to CASR 119.010(1)(e). CASA need not express a concluded view as there is no proposal to do so.
Question 3: Is CASA confident that prescription in a MOS subordinate to CASR is a lawful way of in effect reversing the way in which the regulations operate on their face by, for example, turning an operation that is not an air transport operation as defined in the CASR Dictionary into an Australian air transport operation?
Answer 3: Yes. CASA assumes the validity of aviation legislation unless and until a Court finds the legislation is not valid.
Question 4: Assuming CASA is confident in terms of question 3, does CASA comprehend the confusion that is caused when the outcomes produced by definitions applied on the face of the operative regulations can in effect be altered by sentences buried in Manuals of Standards?
Answer 4: Yes. The aviation legislation has been in three tiers for many years. Civil Aviation Orders pre-dated MOS’s. Sometimes a legislative scheme is also affected by general exemptions or directions. CASA appreciates that such a scheme can sometimes be complicated and for that reason publishes comprehensive guidance material.
This guidance is current at the time it has been provided, however may be subject to change over time or at the discretion of the policy
I consider my mastery of English to be at least average for a native speaker, ie AELP Level 6. Once upon a time I even had at least average knowledge of Air Law in multiple jurisdictions.
But I have great difficulty following CASA’s replies above, and much of their legislation in general. I have no problem understanding FAA, NZCAA, PNG CASA etc, but I know that I would fail Aussie Air Law/IREX and indeed probably would fail a thorough oral for reissue of a simple IPC. Fortunately for the flying public, I had the good sense to retire before my regulatory ignorance led to a major disaster.
If the language requirement for Australian aircrew is AELP 4 (can order a cup of coffee, read a parking ticket and hit on that cute guy/gal at the bar) then all the ‘rules’ that attract a penalty should be written so that pilots at AELP 4 can understand them. Lots of short sentences with no double negatives, split infinitives or “notwithstandings” would be a start.
But I have great difficulty following CASA’s replies above, and much of their legislation in general. I have no problem understanding FAA, NZCAA, PNG CASA etc, but I know that I would fail Aussie Air Law/IREX and indeed probably would fail a thorough oral for reissue of a simple IPC. Fortunately for the flying public, I had the good sense to retire before my regulatory ignorance led to a major disaster.
If the language requirement for Australian aircrew is AELP 4 (can order a cup of coffee, read a parking ticket and hit on that cute guy/gal at the bar) then all the ‘rules’ that attract a penalty should be written so that pilots at AELP 4 can understand them. Lots of short sentences with no double negatives, split infinitives or “notwithstandings” would be a start.
If the language requirement for Australian aircrew is AELP 4 (can order a cup of coffee, read a parking ticket and hit on that cute guy/gal at the bar) then all the ‘rules’ that attract a penalty should be written so that pilots at AELP 4 can understand them. Lots of short sentences with no double negatives, split infinitives or “notwithstandings” would be a start.
Thread Starter
I find page 1 of the PEGs confusing and perturbing. For instance, it’s difficult for me to get my head around the implications of this sentence:
The perfect bureaucratic paradox. In order to mitigate the risk of confusion arising from the complexity of the legislation we've produced, we’ve also produced this plain English Guide to make it easier for you to understand the legislation. But you should not use the Guide as a substitute for the legislation. Which kinda means you have no choice but to get your head around the legislation, which could result in the confusion which justified the creation of the plain English Guide in which you'll find the sentence quoted above.
Page 1 also asserts, in passive voice:
That’s great, but what happens if that expectation is not met? The answer:
That’s all well and good, but CASA doesn’t decide what that clause, about the consequences of non-compliance with legislative requirements, in your contract of insurance means or what your insurer can do about it.
This guide should not be used as a substitute for the aviation regulations or MOS, as it does not reproduce all the text that appears in the legislation.
Page 1 also asserts, in passive voice:
By following this guide, it is expected that you will comply with [specify subject matter] rules.
If you rely in good faith on information appearing in this guide that turns out to be incorrect, we will consider any resultant non-compliance with the legislative requirements in accordance with the ‘just culture’ principles set out in CASA’s Regulatory Philosophy in determining what action, if any, we take.
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Exactly. CASA had a chance to clear up the regulatory mess either they, or some nameless government department they wish to blame, created.. but methinks they've lost that chance forever.
I feel sorry for the students coming through now, having to dig through even more meaningless "guides" than existed only a few years back - only to find they've just wasted their time and become more confused in the process.
I feel sorry for the students coming through now, having to dig through even more meaningless "guides" than existed only a few years back - only to find they've just wasted their time and become more confused in the process.
At one stage there last year it looked like Old Mate the local Plumber from Kickatinalong was required to get an AOC because he chose to fly his own C182 out to a property to fix a leaking tap and not charge for the aircraft at all. Nope going to do a job he is being paid for needs an AOC. Then there was me wanting to put my supermodel girlfriend on my own Biz Jet to go shopping in Melbourne while I wasn't on board, and bang! I needed an AOC too! The flying podiatrist in his own Mooney......Yep! AOC. All because "they" removed the words "For Hire or Reward" from the definition.
Thread Starter
The current definition of "air transport operation" does include "for hire or reward". If there's no hire or reward, it isn't an "air transport operation".
The current problem, as I see it, is that CASA has chosen to interpret "reward" very broadly. I'm still waiting on answers to my last tranche of questions, one of which touches on the 'hire and reward' issue. (That reminds me to chase that up, because the CASA 'Guidance Delivery Centre' has usually been very prompt to respond.)
The current problem, as I see it, is that CASA has chosen to interpret "reward" very broadly. I'm still waiting on answers to my last tranche of questions, one of which touches on the 'hire and reward' issue. (That reminds me to chase that up, because the CASA 'Guidance Delivery Centre' has usually been very prompt to respond.)
The current problem, as I see it, is that CASA has chosen to interpret "reward" very broadly. I'm still waiting on answers to my last tranche of questions, one of which touches on the 'hire and reward' issue. (That reminds me to chase that up, because the CASA 'Guidance Delivery Centre' has usually been very prompt to respond.)
Overheard recently at CASA GDC HQ: "Hey Boss, it's that Clinton guy again!! Look, I only took this here taxpayer-funded sinecure 'cause I thought nobody would ever think to call us, given reading the current regs would put any sane pilot's head in a tail-spin. D'ya feel like another round of golf? Maybe he'll give up and go away."
