Avmed delays in granting medical certificates - is our old certificate kept alive?

[Clinton McKenzie]

Believe it or not, there are provisions of the rules that are designed to provide us with some protection from the capricious consequences of incompetent and overreaching bureaucracies. One of those provisions is CASR 11.140(3).

I’ll quote the entirety of CASR 11.140, later, so you have all the gory detail, but here’s 11.140(3) with some tweaks I’ve made to try to make its effect clearer:

In spite of any other provision of these Regulations … [a person’s] old authorisation continues in force until:

(a) CASA makes a decision on the application [by the person for a new authorisation]; and

(b) if the decision is to grant the new authorisation—the new authorisation comes into force.

It seems to me to be a very simple and reasonable concept. I hold an authorisation and apply for a new one because I need to continue to be authorised to do what I want to do. While ever that application – provided it is complete - is bumping around in the bowels of the bureaucracy, my old authorisation remains in force even if the date of expiry printed on it passes. After all, I have no control over the corporate competence and integrity of the bureaucracy.

You might ask: What is an “authorisation” for the purposes of CASR 11.140? Good question. Here’s the relevant current definition from CASR 11.015:

authorisation means:

(a) a civil aviation authorisation other than:

(i) an AOC; or

(ii) a delegation; or

(iii) the appointment of an authorised person; or

(iv) an authorisation issued by an ASAO; or

(b) an approval or qualification of a document or thing under these Regulations, other than a material, part, process or appliance to which regulation 21.305A applies; or

(c) a certificate capable of being granted to a person under these Regulations.

Note (c) in particular: “a certificate capable of being granted to a person under these Regulations”. Medical certificates are issued under CASR 67.180(2).

So it looks to me like a medical certificate is a “certificate capable of being issued to a person under these Regulations” (i.e. CASR 67.180(2)) and is therefore an “authorisation” for the purposes of Part 11. I’ve asked some questions of CASA that include its position on this question (see below).

There’s another important definition in Part 11:

time limited authorisation means:

(a) an authorisation that, under another provision of these Regulations, ceases after a particular period; or

(b) an authorisation granted by CASA for a specified period.

Medical certificates cease after a particular period or are granted for a specified period. So it seems to me that if a medical certificate falls within the scope of the definition of “authorisation” in Part 11, a medical certificate is also a “time limited authorisation” for the purposes of that Part.

With that background, here’s the current CASR 11.140:

11.140 Continuation of authorisation until application decided

(1) This regulation applies in relation to a time‑limited authorisation (the old authorisation) if:

(a) at least:

(i) in the case of an authorisation held by a corporation, 90 days; or

(ii) in any other case, 21 days;

before the time when the old authorisation would otherwise cease, its holder applies to CASA for the issue of a new time‑limited authorisation that confers the same privileges, or authorises the holder to carry out the same functions or duties, as the old authorisation; and

(b) at the time when the old authorisation would otherwise cease, CASA has not made a decision on the application.

(2) For subregulation (1), an applicant has applied for the new authorisation only if:

(a) the applicant has given to CASA the necessary application, in the form required by these Regulations; and

(b) the application is taken to be complete, in accordance with regulation 11.030; and

(c) the applicant has given to CASA any other documents required by these Regulations to be given to CASA with the application.

Note: The applicant does not need to give to CASA information or a document that CASA already has—see regulation 11.145.

(3) In spite of any other provision of these Regulations, but subject to subregulation (4), the old authorisation continues in force until:

(a) CASA makes a decision on the application; and

(b) if the decision is to grant the new authorisation—the new authorisation comes into force.

(4) If CASA asks for further information or a document or invites the applicant to make a submission, under a provision of Subpart 11.B as applied by regulation 11.145, and the applicant does not do so within the period specified by CASA under that provision, then, despite subregulation (3), the old authorisation is taken to cease at the end of that period.

So it seems to me that if I apply for a new medical certificate at least 21 days before my old one expires and I’ve given CASA everything required, my old certificate continues for however long it takes CASA to get its act together and make a decision.

I realise that there are formidable practical problems for the holders of medical certificates who fly internationally, because other countries’ authorities will be focussed on what is said on the piece of squashed tree you’re carrying. But the fundamental threshold question is whether, at least as a matter of domestic law, CASR 11.140 does what it appears to say it does to medical certificates. I have asked CASA the following questions:

1. Does CASA consider a medical certificate capable of being granted under CASR 67.180(2) to be an "authorisation" within the scope of the definition of that term, and in turn a "time-limited authorisation" within the scope of the definition of that term, in CASR 11.015?

2. If the answer to question 1 is yes, does CASA consider that if the holder of a medical certificate issued under CASR 67.180(2) applies for a new medical certificate at least 21 days before the old certificate is expressed to expire, and the circumstances of the application satisfy the criteria in CASR 11.140(2), the old certificate will, as a consequence of the operation of CASR 140(3) but subject to CASR 140(4), remain in force until CASA makes a decision on the application and, if the decision is to grant a new certificate, until the new certificate comes into force?

3. If the answer to question 2 is yes, does CASA agree that the effect of CASR 140(3) is to keep medical certificates (and the other authorisations to which CASR 140(3) applies) in force despite the date of expiry that happens to be expressed on the certificates?

4. Does CASA agree that the circumstances of an application for a new medical certificate can satisfy the criteria in CASR 11.140(2), whether or not any individual CASA delegate is aware of or has turned his or her mind to the substance of the application?

5. What does CASA consider to be the minimum period CASA may lawfully specify in an invitation, under a provision of Subpart 11.B as applied by CASR 11.145, for an applicant to make a submission or provide further information or a document pursuant to CASR 140(4)? For example, does CASA consider that CASA could lawfully specify a period of 24 hours, such that a medical certificate being kept in force by CASR 140(3) would cease to be in force 24 hours later if the applicant did not respond to the invitation within 24 hours?

I asked the last question because CASA Avmed are masters at pulling whatever tricks they can to get around inconvenient impediments to them imposing their will on us guinea pigs.

I’ll let everyone know what answers I receive when I receive them. I will also write to the CEO of CASA once I receive the answers, seeking confirmation that CASA “acknowledges” the answers. Given the content of recent correspondence from the CASA CEO to Glen Buckley, it appears that something said or done by someone in CASA other than the CEO didn’t happen unless and until the CEO “acknowledges” it happened.

[Clinton McKenzie]

CASA advised me, yesterday, of its view that CASR 11.140 does not apply to medical certificates. I will quote CASA’s entire response later in this post.

My view is that CASA’s reasoning is arrant nonsense leading to a patently unreasonable outcome. As an act of purest optimism, I have explained my reasons and invited CASA to think a bit more about it and confirm whether it sticks to its view. Here is what I sent to CASA this morning:

It appears to me that CASA has started from the premise that the application of CASR 11.140 to medical certificates would be inconvenient to CASA and therefore the outcome should be that CASR 11.140 should not apply to medical certificates. Then follows some unconvincing reasoning that does not support the pre-determined conclusion. That’s not how the statutory interpretation task is supposed to be completed.

CASA appears to have construed its view as to the effects of (or, more accurately, CASA’s views as to the lack of the effects of) a medical certificate as somehow restricting the scope of the time-limited authorisations to which CASR 11.140 applies. You’ll correct me if I’m wrong, but I summarise CASA’s reasoning to be:

1. A medical certificate is a “time-limited authorisation” as defined for Part 11 of CASR.
2. However, and even though CASR 11.140 is in Subpart 11.E headed “Time-limited authorisations”, CASR 11.135 states that the Subpart “sets out provisions relating to time-limited authorisations” and medical certificates are “time-limited authorisations”, CASR 11.140 does not apply to medical certificates because, in CASA’s view:

• CASR 11.140 only applies to time-limited authorisations which confer privileges or authorise the holder to carry out functions or duties; and
• a medical certificate does not confer any privileges or authorise the holder to carry out any functions or duties.

As a matter of basic statutory interpretation, CASA is construing part of a provision which:

• limits the timing of the submission to CASA of the applications for a time-limited authorisation to which CASR 11.140 can apply, and
• further limits those applications to ones for a new authorisation that will do the same thing as the old authorisation,

as somehow excluding a whole class of time-limited authorisations from the scope of CASR 11.140.

Not only does that produce a patently unreasonable outcome, it is wrong even if CASA’s view as to the effect of medical certificates is accepted.

CASR 11.140 says:

11.140

Continuation of authorisation until application decided

(1) This regulation applies in relation to a time‑limited authorisation (the old authorisation) if:

(a) at least:

(i) in the case of an authorisation held by a corporation, 90 days; or

(ii) in any other case, 21 days;

before the time when the old authorisation would otherwise cease, its holder applies to CASA for the issue of a new time‑limited authorisation that confers the same privileges, or authorises the holder to carry out the same functions or duties, as the old authorisation; and

(b) at the time when the old authorisation would otherwise cease, CASA has not made a decision on the application.

The policy of CASR 11.140(1)(a) is evident and reasonable. If an applicant has applied sufficiently in advance of the expiry of their old time-limited authorisation and the applicant is not applying for anything different than before, and for whatever reason CASA does not make a decision on the application before the old authorisation would expire on its face, the applicant shouldn’t be penalised.

The policy of the ‘sameness’ criterion in CASR 11.140(1)(a) is evident and reasonable. If the applicant is applying for a time-limited authorisation that would confer different privileges or authorisations than are conferred or authorised by the holder’s old time-limited authorisation, it is reasonable for CASA to take more time to assess the application and the holder’s old time-limited authorisation can be left to expire because the applicant has chosen to apply for different privileges or authorisations than the applicant previously had.

Now let us assume that a medical certificate confers no privileges and authorises nothing, as CASA says. It follows, from that assumption, that when the holder of a time-limited authorisation which happens to be a medical certificate applies for a new one, the applicant is the holder of a time-limited authorisation that confers no privileges and authorises nothing, and the applicant is applying for a new-time limited authorisation that confers no privileges and authorises nothing. Those are the same privileges and authorities: none. The sameness criterion in CASR 11.140(1)(a) is therefore satisfied.

(As I recall, we went through similar nonsense in relation to the interpretation of the definition of a ‘cost-sharing’ flight, and CASA finally conceded that if the PIC pays the entirety of the direct costs of a flight, the flight satisfies the ‘cost-sharing’ flight criterion that the PIC 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. Just as payment of the entirety of the direct costs of a flight is payment of an amount that “is at least equal to” an amount in terms of that criterion, an old time-limited authorisation which – according to CASA – confers no privileges and authorises nothing is the same as a new time-limited authorisation which confers no privileges and authorises nothing.)

CASA has construed the sameness criterion as having the effect of excluding a whole class of certificates from the operation of Subpart 11E of CASR, even though those certificates fall within the definition of “time-limited authorisation” and Subpart 11E deals with, and only with, time-limited authorisations. According to CASA, the legislature went to the trouble of defining “time-limited authorisation” in Part 11 so as to capture medical certificates but then deliberately excluded medical certificates entirely from the benefit of the operation of Subpart 11E - without saying that in clear words – so that the holders of some kinds of time-limited authorisations but not others would be protected from the capricious consequences of CASA delays over which the applicant has no control. The intent of the legislature was, according to CASA, not to afford that protection in relation to the class of time-limited authorisations called medical certificates, even though the consequences of delays are particularly profound for the holders of medical certificates. I call that nonsense leading to a patently unreasonable outcome.

The practical consequences of CASA delays in processing medical certificate applications are profound for the applicants. CASA knows how much stress and costs those delays cause. To construe a provision - whose evident policy is to provide applicants some protection from the capricious consequences of CASA delays over which the applicant has no control – as providing no protection in the most common circumstances in which applicants are exposed to those capricious consequences, is the kind of behaviour which contributes to CASA’s poor reputation.

I anticipate some sophistry about the safety of air navigation supporting CASA’s interpretation. The reason it would be sophistry is that if there’s some risk to the safety of air navigation in CASR 11.140 applying to medical certificates, there’s some risk to the safety of air navigation in CASR 11.140 applying to any authorisations at all, especially the ones to which CASA says CASR 11.140 does apply. On CASA’s own interpretation, CASR 11.140 can keep alive time-limited authorisations which in themselves authorise the holder to continue to do things.

I therefore request that you confirm that CASA’s position continues to be that CASR 11.140 has no operation in relation to medical certificates.

Further, are you able to nominate a certificate, other than a medical certificate, which falls within the scope of paragraph (c) of the definition of “authorisation” and definition of “time-limited authorisation” in CASR 11.015, and to which in CASA’s view CASR 11.140 does apply?

Regards

Clinton McKenzie

Assuming CASA sticks with its view, the practical problem for holders of medical certificates is that the only way in which to get an authoritative ruling on whether CASR 11.140 applies to medical certificates is for individuals to proceed on the basis that it does apply and challenge any enforcement action taken by CASA on the basis of CASA’s view that it does not apply. In effect, CASA would be taking enforcement action on the basis that we’re flying without a medical certificate while CASA delays making a decision on our application for a new medical certificate.

That’s an enormous risk for individuals to take, because of the damage that can be done to the individual by CASA on the way to getting an authoritative ruling. The high dollar cost, high stress cost and probably licence suspension while CASA pulls every trick in the book to delay a resolution, would make any victory pyrrhic.

Of course, the solution to all this would be for Avmed to have the corporate competence to make timely decisions without harmful overreactions to the objective risks, thus rendering the application of CASR 11.140 to medical certificates academic. And pigs might fly (with a medical certificate).

Here is the entirety of what I was sent by CASA yesterday:

Question 1: Does CASA consider a medical certificate capable of being granted under CASR 67.180(2) to be an "authorisation" within the scope of the definition of that term, and in turn a "time-limited authorisation" within the scope of the definition of that term, in CASR 11.015?

Response 1: Yes, a medical certificate is an authorisation under Part 11, 11.015 Definitions Civil Aviation Safety Regulations 1998 (CASR) defines authorisation to include: (c) a certificate capable of being granted to a person under these Regulations. As an authorisation with an expiry date, a medical certificate falls within the definition of time-limited authorisation.

Question 2: If the answer to question 1 is yes, does CASA consider that if the holder of a medical certificate issued under regulation 67.180(2) of CASR applies for a new medical certificate at least 21 days before the old certificate is expressed to expire, and the circumstances of the application satisfy the criteria in CASR 11.140(2), the old certificate will, as a consequence of the operation of CASR 11.140(3) but subject to CASR 11.140(4), remain in force until CASA makes a decision on the application and, if the decision is to grant a new certificate, until the new certificate comes into force?

Response 2: No. Regulation 11.140 CASR does not apply to medical certificates.

CASR 11.140(1) states that this regulation applies in relation to a time-limited authorisation (the old authorisation) if at least 21 days “before the time when the old authorisation would otherwise cease, its holder applies to CASA for the issue of a new time-limited authorisation that confers the same privileges, or authorises the holder to carry out the same functions or duties, as the old authorisation” and “at the time when the old authorisation would otherwise cease, CASA has not made a decision on the application.”

CASR 11.140 does not apply to all types of time-limited authorisations. It only applies to authorisations that confer privileges or authorise holders to carry out functions or duties. A medical certificate does not of itself, enable the holder to carry out the holder to exercise privileges or carry out functions or duties under civil aviation legislation. A pilot is authorised to fly an aircraft by virtue of holding a pilot licence with appropriate endorsements and ratings. The pilot licence is subject to a number of limitations to the exercise of those privileges. Relevantly, the holder of a pilot licence is only authorised to exercise the privileges of the licence if the holder also holds a relevant current medical certificate (see CASR 61.405, 61.410 and 61.415).

Part 67 sets out the requirements for the issue of a medical certificate. The pilot must comply with the requirements of Part 67 to ensure that his or her medical certificate remains current.

Question 3: If the answer to question 2 is yes, does CASA agree that the effect of CASR 11.140(3) is to keep medical certificates (and the other authorisations to which CASR 11.140(3) applies) in force despite the date of expiry that happens to be expressed on the certificates?

Response 3: No. As noted above the relevant procedure is that in Part 67 not CASR 11.140.

Question 4: Does CASA agree that the circumstances of an application for a new medical certificate can satisfy the criteria in CASR 11.140(2), whether or not any individual CASA delegate is aware of or has turned his or her mind to the substance of the application?

Response 4: See previous answer.

Question 5: What does CASA consider to be the minimum period CASA may lawfully specify in an invitation, under a provision of Subpart 11.B as applied by CASR 11.145, for an applicant to make a submission or provide further information or a document pursuant to CASR 11.140(4)? For example, does CASA consider that CASA could lawfully specify a period of 24 hours, such that a medical certificate being kept in force by CASR 11.140(3) would cease to be in force 24 hours later if the applicant did not respond to the invitation within 24 hours?

Response 5:Not necessary to answer as CASR 11.140 does not apply to a medical certificate.

[thunderbird five]

Beautifully articulated Clint.

[Clinton McKenzie]

I sent this PS:

PS: Here is what the Explanatory Statement for the regulations which inserted Part 11 into CASR says about Part 11E, with underlining added by me:

Subpart 11.E Time-limited authorisations

New regulations 11.135 to 11.150 - Continuation of time-limited authorisations until application for renewal is decided

The purpose and effect of Subpart 11.E ise to extend the operation of an authorisation past what would otherwise be its expiry date if the holder of the authorisation has applied for a new authorisation in the same terms as the old, and CASA has not made a decision on the application prior to the old authorisation's expiry date.

For the holder of an authorisation to obtain the benefit of the extension of the old authorisation, the holder must have:

· applied for a new authorisation which is substantively the same as the old authorisation;

· made the application a reasonable period of time before the expiry of the old authorisation (if the holder is a corporation, 90 days, if an individual, 21 days); and

· made an otherwise complete application.

Further, if CASA requests further information from the applicant within a period of time, and the applicant does not supply that information in time, the authorisation expires at that time.

The process for granting a new authorisation to replace an old time-limited authorisation is largely the same as the process for granting an initial authorisation, with the exception that the holder of the authorisation need not include information or a document in the application for variation which the holder has already given CASA and which has not changed since it was given.

Otherwise, all of the provisions of Subpart 11.B apply to the application for the new authorisation as if it were an application for a grant of an initial authorisation. CASA is not obliged to issue the new authorisation on the same terms as the old (although in most cases such a decision would be subject to external merits review by the Administrative Appeals Tribunal).

That explanation is entirely consistent with the evident and reasonable purpose of Subpart 11E. There is nothing in that explanation to support an interpretation which excludes the holders of any kind of the defined time-limited authorisations from the protection afforded by CASR 11.140. The sameness criterion is about the substance of the old and new time-limited authorisation, not a mechanism to exclude a whole class of time-limited authorisations from the application of CASR 11.140.

CASA will hopefully understand the implications of extrinsic materials such as the Explanatory Statement of regulations in interpreting the regulations.

Regards

Clinton McKenzie

[compressor stall]

Meanwhile who else is on their second medical extension? Did my medical late April received 2 month extension immediately. No complicating factors.

7 weeks later….
Ring CASA. “It’s still with doc”
Ring Doc. “It’s definitely with CASA
ring CASA. “Nope with doc”
Ring doc (no easy feat to talk direct). “Def with CASA”
Ring CASA. “ we’ll get our DAME support team to reach out to your doc in case he’s having trouble”
Ring doc - “casa called. I’ve extended your medical another 2 months”
Ring CASA - “We’re still experiencing IT issues. We have it. Expect your medical in a week”.
Me - “ but I’ve got to fly internationally on Monday. I’ll be in breach of ICAO legislation if I don’t have a certificate stating my last examination date was within 12 months”.
CASA. “Carry the (expired) original extension that has the examination date, as well as the extension’s extension (that doesn’t have the last examination date).
Me… hmmm


Still waiting.

[Clinton McKenzie]

CASA Avmed adding 'safety', as usual.

[ControlLock]

Did my Class 1 ATPL medical renewal last month.
DAME issued 4 month provisional medical which arrived via email before I had left the surgery.
Full 12 month renewal medical issued by CASA arrived at my inbox just seven hours later.
All done and dusted in one day.

[Horatio Leafblower]

Did my renewal on 22 Feb.
Re-validation received before I got to my car in the carpark.

8 weeks came and went. Interim certificate issued, expires 22 JUL.

Still waiting!

[Cloudee]

I have needed a cardiologist report every year, CASA looks at the report and issues the class 1 medical. Last year it took them four months. This year - one day!! Could not believe it.

[bugged on the right]

Blimey , having scanned over this it appears your medical system is a shambles. My avmed man here puts my CAA reference number in his computer, presses button A and out comes my medical certificate with nice CAA watermark and all relevant dates worked out by the machine. Payment is done the old fashioned way. I give him lots of money.

[First_Principal]

Originally Posted by bugged on the right

...Payment is done the old fashioned way. I give him lots of money.

Baksheesh?

[smiling monkey]

Originally Posted by Cloudee

I have needed a cardiologist report every year, CASA looks at the report and issues the class 1 medical. Last year it took them four months. This year - one day!! Could not believe it.

Previously they based their heart risk assessment data on Americans who have a different dietary and exercise lifestyle to many of us (read we’re not as overweight as they are). Consequently, we’re less likely to have heart complications now than before. So all those stress ECGs I’ve been doing for last 3 years which confirms my good state of health weren’t really required afterall. My last medical was completed in under 45 minutes, with full class 1 medical issued by CASA by the time I reached home from my DAME.

Finally some sense with the folks at CASA amved department.

[Cedrik]

Originally Posted by smiling monkey

Previously they based their heart risk assessment data on Americans who have a different dietary and exercise lifestyle to many of us (read we’re not as overweight as they are). Consequently, we’re less likely to have heart complications now than before. So all those stress ECGs I’ve been doing for last 3 years which confirms my good state of health weren’t really required afterall. My last medical was completed in under 45 minutes, with full class 1 medical issued by CASA by the time I reached home from my DAME.

Finally some sense with the folks at CASA amved department.

Don't believe it, last 30ish years never been under six weeks. Last time they said they couldn't look at it for one month, they rang 60 days after my medical and all required tests were sent at. I have had others tests requested like a kidney scan because I had a kidney stone over thirty years ago with no recurrence.

[bugged on the right]

First Principal. Probably would have cost a lot less if it was. However I did once fly with a chap who had a Nigerian licence which he somehow managed to convert to an FAA licence and the CAA here gave him a validation to fly a G registered aircraft. In two days this guy got us a track bust and an altitude bust at AMS before either of the other crew could stop him. He needed constant supervision.

[Clinton McKenzie]

If you are lucky enough to:

1. find a DAME who has the delegation to issue your new certificate, and

2. not have given Avmed an excuse to meddle in your medical affairs,

getting a new medical certificate is usually relatively stress-free.

No. 2 is the killer.

Avmed are constantly inventing aero-medically relevant conditions and looking for any excuse to intervene and demand tests. It does not matter what the people with specialist qualifications and knowledge of individual applicants consider to be justified. It does not matter if finite and valuable medical expertise and equipment could be put to some beneficial use rather than reacting to Avmed overreach.

The solemn deliberations of Avmed’s ‘complex case management meetings’ determine what is justified. It’s like a bunch of private pilots who’ve spent some hours flying a 737 on their PC flight simulator getting together and deciding whether an ATPL with 2,000 hours of 737 command time made the right decisions in an emergency.

It is said that these complex case management meetings lead to better decision making. Who says that? Avmed does. And us guinea pigs can just STFU and wait until Avmed can manage to find the time and people to convene one of these meetings to determine how they think our lives should be run, and if the delay and uncertainty causes us any stress, stiff ****. If they’re flat out or short of people, that’s our problem. They are saving the world from us.

Although there is no recognised specialisation in ‘aviation medicine’ – just as there is no recognised specialisation in e.g. trout fishing medicine – the mystique of aviation has resulted in Avmed being placed in a position in which it is, as a matter of practicality, dictating the testing and medical management of people who want to hold a medical certificate. And the data collected – under duress cloaked as consent – is a rich source to be mined and discussed at solemn Avmed conferences.

This would all be unethical if Avmed owed any ethical duties to us guinea pigs, but that would get in the way of 'safety'. Look at CASA’s position on the subject of this thread. According to CASA, CASR 11.140 provides no protection from the capricious consequences of Avmed delays. If we were protected, that would undermine Avmed’s power over us.

(Had a very interesting discussion recently with a chap who underwent an ECG a while ago. Nurse asked whether the chap felt well. Nurse said he’d either recently had a heart attack or was about to have one. Chap said he felt fine. Nurse calls in the Doc, who also decided the chap’s a cardio-vascular time bomb, despite him feeling fine. Months and many thousands of dollars in tests later, they discover that the electrodes had been wrongly connected for the ECG. A bog-standard, garden variety case of medical negligence. Turns out the Doc is someone who’s now in CASA Avmed. One of the submissions to the Senate Committee inquiry into GA details test results which CASA Avmed misconstrued by a factor of 1,000. You’ll see, in the thread about the notorious CASA ‘Form 420’, that CASA Avmed decided to take a questionnaire - designed for use by experts in the diagnosis of ADHD in school children - and inflict it not only on adults, but adults with ASD. The FOI documents reveal the languid arrogance of the unqualified Avmed overreach that produces these kinds of outcomes, and that it was only public exposure that precipitated any action. The risk of every mistake and unqualified overreach lands in the lap of us guinea pigs. And it’s all too hard for CASA to provide access to documents showing the evidential basis upon which the OCVA was dumped and CASA Avmed invented the ACVA for colour vision deficient pilots. That’s because the decision was made on the basis of prejudice, not evidence.)

Avmed knows that its behaviour is driving potential medical problems ‘underground’. It’s on a ‘charm offensive’ to try and convince us that Avmed is all sweetness and light. Don’t fall for it. Judge them by what they do, not what they say.

[Clinton McKenzie]

CASA's response to my supplementary questions:

Subsequent question 1: I therefore request that you confirm that CASA’s position continues to be that CASR 11.140 has no operation in relation to medical certificates.

Subsequent response 1: Yes, CASA's position is that CASR 11.140 does not apply to a medical certificate. The entire legislative scheme needs to be considered in that respect, highlighting the operation of (a) CASR 11.140(1), and (b) CASR 67.210-67.225 that provide for extensions of the period that a medical certificate is in force. There are no other provisions in CASR that provide for the extension of a civil aviation authorisation issued by CASA, and that together with the terms of the extension provisions support CASA’s view CASR 11.140 does not apply to medical certificates.

Subsequent question 2: Further, are you able to nominate a certificate, other than a medical certificate, which falls within the scope of paragraph (c) of the definition of “authorisation” and definition of “time-limited authorisation” in CASR 11.015, and to which in CASA’s view CASR 11.140 does apply?

Subsequent response 2: Yes, an example of such a certificate is a flight training certificate issued under Part 141 of CASR.

My follow-up:

I note that you now cite CASRs 67.210-67.225, which provide for extensions of the period that a medical certificate is in force, as if they have relevance to the interpretation of the scope of CASR 11.140. Your original reasoning was based merely on the words “privileges … functions or duties…” in CASR 11.140(a) and your view that medical certificates confer no privileges and authorise no functions or duties.

I also note that you have made no reference to what the Explanatory Statement for the regulations, which inserted Part 11 in to CASR, says about Part 11E. Your statement that “[t]he entire legislative scheme needs to be considered” is correct, so far as it goes. But so should the wider context be considered (at least since the High Court’s decision in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) CLR 384). The wider context, including the Explanatory Statement, makes abundantly clear what mischief Part 11E is intended to remedy. The mischief is the damage caused by CASA delays over which applicants for new time-limited authorisations to replace old time-limited authorisations have no control. And we agree that medical certificates fall within the Part 11 definition of “time-limited authorisation”.

As to consideration of “the entire legislative scheme” and CASRs 67.210-67.225, you omitted to consider the opening words of CASR 11.140(3) (bolded by me):

(3) In spite of any other provision of these Regulations, but subject to subregulation (4), the old authorisation continues in force until:

(a) CASA makes a decision on the application; and

(b) if the decision is to grant the new authorisation—the new authorisation comes into force.

CASRs 67.210-67.225 are among the other provisions in spite of which CASR 11.140(3) operates. That is the very point of Subpart 11.E. Despite whatever all of the other regulations – including CASRs 67.210-67.225 – say about the duration of a time-limited authorisation, CASR 11.140(3) overrides all of that and keeps the authorisation in force if the holder has applied sufficiently in advance of when it would otherwise expire and the application is for a new authorisation that is – to use the words of the Explanatory Material – “in the same terms” or “substantively the same” as the old authorisation. It all makes robust common sense in the real world, especially in the case of medical certificates.

You do not need to respond to the above unless it changes your view. At this point it is clear to me that nothing I say will deter CASA from what appears to me to be a forgone conclusion, the subject now of unconvincing ex post facto attempted justifications.

However, I do seek clarification of your answer that a flight training certificate issued under Part 141 of CASR is an example of a time-limited authorisation which CASA considers can be within the scope of CASR 11.140(1). My clarification question is:

What provision of CASR results in flight training certificates issued under Part 141 ceasing after a particular period, or gives CASA power to issue flight training certificates issued under Part 141 with limited duration?

I have searched Part 141 for any provision to that effect, to no avail. I also note that even though CASR 11.010(3A) says that Subpart 11.BA “contains rules about granting authorisations, including the duration of, and the imposition of conditions on, authorisations”, no provision of Subpart 11.BA that I can find deals with the duration of authorisations. There is, for example, a provision dealing with when an authorisation comes into effect – CASR 11.065 – but I cannot find a provision of Subpart 11.BA dealing with when an authorisation expires or ceases to be in effect or operates for only a specified duration. (I do hope CASA would not seek to rely on the mere ‘note’ under CASR 11.065 as the source of any power to impose time limits on authorisations.) My apologies if I’ve overlooked the operative provision.

[Clinton McKenzie]

I wrote to Ms Spence in the following terms today (7 August 2023), Attachments omitted:

Background

On 18 June 2023 I sent some questions to CASA’s Regulatory Guidance Centre (the Centre) about the application of CASR Subpart 11.E to medical certificates. A copy of those questions is at Attachment A. A copy of the Centre’s response, dated 6 July 2023, is at Attachment B.

On 7 July 2023 I sent some supplementary requests to the Centre, as well as an extract from the Explanatory Statement to the regulations the subject of the request. A copy of those requests and the extract are at Attachment C. A copy of the Centre’s response, dated 1 August 2023, is at Attachment D. My follow-up, dated 1 August 2023, is at Attachment E.

My requests to you

I request that you:

1. acknowledge that the Centre’s correspondence at Attachments B and D is CASA correspondence; and
2. confirm that CASA’s position is that: “CASR 11.140 does not apply to a medical certificate.”

[Clinton McKenzie]

Follow up correspondence today.

This to Ms Spence:

Dear Ms Spence

More than 10 working days have passed since I sent my letter to you about CASR Subpart 11E and medical certificates. I request that you at least acknowledge receipt of my letter. (My apologies if receipt has already been acknowledged and I’ve overlooked the acknowledgement.)

Regards

This to the ‘Guidance Centre’:

As more than 15 working days have passed since I sent my clarification question, I seek an update on progress. For convenience, here is the clarification question and my reasons for the question set out in my email of 1 August 2023:

What provision of CASR results in flight training certificates issued under Part 141 ceasing after a particular period, or gives CASA power to issue flight training certificates issued under Part 141 with limited duration?

I have searched Part 141 for any provision to that effect, to no avail. I also note that even though CASR 11.010(3A) says that Subpart 11.BA “contains rules about granting authorisations, including the duration of, and the imposition of conditions on, authorisations”, no provision of Subpart 11.BA that I can find deals with the duration of authorisations. There is, for example, a provision dealing with when an authorisation comes into effect – CASR 11.065 – but I cannot find a provision of Subpart 11.BA dealing with when an authorisation expires or ceases to be in effect or operates for only a specified duration. (I do hope CASA would not seek to rely on the mere ‘note’ under CASR 11.065 as the source of any power to impose time limits on authorisations.) My apologies if I’ve overlooked the operative provision.

Regards

Meanwhile, I note that according to CASA’s published service delivery statistics, the percentage of medical certificate services completed within target are:

Class 1: 55%

Class 2: 47%

Class 3: 44%

This highlights why the question whether CASR 11.140 applies to medical certificates is so important.

(Medical certificate service performance doesn’t win the prize for the most abysmal against targets, though. First, Second and equal Third Prize are won by Domestic Initial Licence – RPL (16%), Domestic Initial Licence – PPL (36%) and Domestic Initial Licence – CPL 44%.)

[Clinton McKenzie]

PS: Ms Spence has now responded, to the effect that the question whether CASR 11.140 applies to medical certificates is still being reviewed.

[Cedrik]

Taking the question on notice............