Do you hold a Part 141 Flight Training Certificate with an expiry date?
Thread Starter
Do you hold a Part 141 Flight Training Certificate with an expiry date?
Some of you may be aware of my ongoing correspondence with CASA about its position on the question whether CASR 11.140 keeps medical certificates ‘alive’ – provided an application for a new one in the same terms is made at least 21 days before the expiry of the holder’s old certificate. I’ve twice been given the answer ‘no’ by ‘Regulatory Guidance’, but upon writing to the CASA CEO to seek acknowledgment and confirmation of that as CASA’s position, that was not forthcoming. It’s now the subject of upcoming discussions.
However, in the course correspondence so far, I asked CASA for an example of a certificate to which, in CASA’s opinion, CASR 11.140 does apply. CASA’s answer was Flight Training Certificates issued under Part 141. I accordingly looked at CASR Part 141 and CASR Part 11 to find out the source of CASA’s power to issue those certificates with limited duration. I read and squinted a lot but could not find any provision to that effect.
I therefore asked CASA the following question, on 1 August 2023, and followed-up on 23 August 2023:
Nothing heard, as yet. I will keep everyone informed of a response, when I receive one.
(Just for the sake of completeness, I note that just because pilot licences don’t have any expiry date doesn’t mean a pilot’s licence can’t be suspended or cancelled. Nor does it mean, for example, that a pilot’s licence can’t cease to authorise the exercise its privileges if a flight review is not conducted within a specified period or, as another example, cease to authorise the carriage of passengers if a specified number of take-offs and landings have not been carried out by the holder in a specified period before the carriage of passengers. I don’t see why the some concept can’t apply to Flight Training Certificates issued under Part 141.)
However, in the course correspondence so far, I asked CASA for an example of a certificate to which, in CASA’s opinion, CASR 11.140 does apply. CASA’s answer was Flight Training Certificates issued under Part 141. I accordingly looked at CASR Part 141 and CASR Part 11 to find out the source of CASA’s power to issue those certificates with limited duration. I read and squinted a lot but could not find any provision to that effect.
I therefore asked CASA the following question, on 1 August 2023, and followed-up on 23 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.
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.
(Just for the sake of completeness, I note that just because pilot licences don’t have any expiry date doesn’t mean a pilot’s licence can’t be suspended or cancelled. Nor does it mean, for example, that a pilot’s licence can’t cease to authorise the exercise its privileges if a flight review is not conducted within a specified period or, as another example, cease to authorise the carriage of passengers if a specified number of take-offs and landings have not been carried out by the holder in a specified period before the carriage of passengers. I don’t see why the some concept can’t apply to Flight Training Certificates issued under Part 141.)
Watching with great interest.
I have checked your work as best I can and despite 11.010(3A)
I too can find no mention in 11.BA of any rules about duration of authorisations.
11.065 has a curious note:
Note:
Some kinds of authorisation continue indefinitely unless cancelled.
Others cease (unless sooner cancelled) at a time set by another provision of these Regulations.
Yet others cease (unless sooner cancelled) at a time set by CASA, subject to a maximum duration.
None of those sound like a rule, more so it is just commentary, based on - what?
I hold a CASA Authorisation for a certain activity, and it has a duration. When it is renewed each 2 years, it comes back identical to the previous, just under $500 later.
Why the duration and renewal for something that does not change, other than for a cash grab?
I have checked your work as best I can and despite 11.010(3A)
I too can find no mention in 11.BA of any rules about duration of authorisations.
11.065 has a curious note:
Note:
Some kinds of authorisation continue indefinitely unless cancelled.
Others cease (unless sooner cancelled) at a time set by another provision of these Regulations.
Yet others cease (unless sooner cancelled) at a time set by CASA, subject to a maximum duration.
None of those sound like a rule, more so it is just commentary, based on - what?
I hold a CASA Authorisation for a certain activity, and it has a duration. When it is renewed each 2 years, it comes back identical to the previous, just under $500 later.
Why the duration and renewal for something that does not change, other than for a cash grab?
Some part 141 approvals are only in effect while the instrument that grants the approval is in effect. The underlying instrument normally has an expiry date, it would then follow the approval would have a date expiry.
Thread Starter
You’ve identified the heart of the question, T5. There are specific regulations which empower CASA to issue specific ‘things’ – to use a neutral term – with an expiry date. A medical certificate is an example. Part 67 contains provisions about the duration of medical certificates.
When CASA nominated Part 141 Flight Training Certificates as a kind of certificate with a limited duration, I tried to find a provision which expressly empowers CASA to issue those certificates for a limited duration. I can’t find one (and I don’t consider the ‘note’ to be enough because, as you say, it’s merely ‘commentary’ about what could be. What actually happens to specific ‘things’ depends on what the regulations have to say about those specific 'things').
From my perspective, CASA’s inability to provide an answer in nearly a month speaks volumes. I hope to be convinced otherwise and will apologise and stand corrected if I’m wrong, but I’m anticipating some dubious argument based on that ‘curious note’ and the Acts Interpretation Act.
swh. I’m not talking about an “approval”. I’m talking about a certificate.
I don’t understand the distinction you’ve drawn between an “approval” and the “instrument that grants the approval”. In my simple mind, they are one and the same. Please don’t try to explain the distinction, because I doubt my brain’s big enough to understand and, in any event, the fact that CASA might issue something with an expiry date merely begs the question. That is, it merely assumes that which is to be proved: whether CASA has power to do that. That is the very purpose of my question to CASA about Part 141 Flight Training Certificates.
I’ll try to make my point this way: Assuming you are or were the holder of a pilot licence, does it have or did it ever have an expiry date on it? If it does not have and never had an expiry date on it, do you think that’s just a product of CASA being ‘nice’?
When CASA nominated Part 141 Flight Training Certificates as a kind of certificate with a limited duration, I tried to find a provision which expressly empowers CASA to issue those certificates for a limited duration. I can’t find one (and I don’t consider the ‘note’ to be enough because, as you say, it’s merely ‘commentary’ about what could be. What actually happens to specific ‘things’ depends on what the regulations have to say about those specific 'things').
From my perspective, CASA’s inability to provide an answer in nearly a month speaks volumes. I hope to be convinced otherwise and will apologise and stand corrected if I’m wrong, but I’m anticipating some dubious argument based on that ‘curious note’ and the Acts Interpretation Act.
swh. I’m not talking about an “approval”. I’m talking about a certificate.
I don’t understand the distinction you’ve drawn between an “approval” and the “instrument that grants the approval”. In my simple mind, they are one and the same. Please don’t try to explain the distinction, because I doubt my brain’s big enough to understand and, in any event, the fact that CASA might issue something with an expiry date merely begs the question. That is, it merely assumes that which is to be proved: whether CASA has power to do that. That is the very purpose of my question to CASA about Part 141 Flight Training Certificates.
I’ll try to make my point this way: Assuming you are or were the holder of a pilot licence, does it have or did it ever have an expiry date on it? If it does not have and never had an expiry date on it, do you think that’s just a product of CASA being ‘nice’?
Thread Starter
Silence continues to be the stern reply to my question. I wrote to 'Regulatory Guidance' in these terms today (21 Sep 23):
As more than 30 working days have passed since I sent my clarification question and more than 15 working days have passed since I sought an update on progress, and because I have received nothing in response, could you at least do me the courtesy of:
- confirming receipt of this email, my email of 23 August 2023 and my email of 1 August 2023, and
- informing me of whether you intend to provide an answer to the clarification question I put in my email of 1 August 2023 and reiterated in my email of 23 August 2023 (in the trail below).
Clinton,
Based upon the contents of your most recent post, I speculate you may have missed your true calling and should not be in the least surprised if the response received from CASA's ‘Regulatory Guidance' section included:
(a) A CASA Form 999 White Flag, small,
(b) A pre-filled Job Application, for signing and return by Registered Mail (because email is too 'modern' for CASA to handle), and
(c) An NDA specifically prohibiting your posting on Pprune and similar forums for the term of your natural life..
Based upon the contents of your most recent post, I speculate you may have missed your true calling and should not be in the least surprised if the response received from CASA's ‘Regulatory Guidance' section included:
(a) A CASA Form 999 White Flag, small,
(b) A pre-filled Job Application, for signing and return by Registered Mail (because email is too 'modern' for CASA to handle), and
(c) An NDA specifically prohibiting your posting on Pprune and similar forums for the term of your natural life..
Thread Starter
Nothing would lure me (back) to CASA. There are a number of people in CASA whom I consider friends and I know are highly competent professionals with great integrity. But the sad fact is that the whole is much less than the sum of its parts. That's how stuff like Robodebt happens. Not enough of what I call 'corporate competence' and 'corporate integrity'.
The following users liked this post:
Back in mid 2017 (at least), CASA used to have a publicly available document. Service Charter of the Civil Aviation Safety Authority from Executive Manager, Corporate Affairs. Copyright date 2001.
You could back then find it easily just by googling that title. Google it now and be spellbound by what you find.
Page 12:
If you write to us, we will:
■ provide a written response to you as soon as practicable, but within 14 days of receipt, or
■ in the event that this time limit cannot be achieved, we will send you an interim reply explaining why and telling you when we will provide you with a full reply.
and
If we do not meet our stated standards or service levels, let us know. We will try to resolve your concerns internally, but if this is not possible, we will let you know the various avenues of redress that are available to you.
I don't know when but this Service Charter vaporised several years ago. But what do you know, I have it, all 18 pages.
Perhaps it promised too much!
You could back then find it easily just by googling that title. Google it now and be spellbound by what you find.
Page 12:
If you write to us, we will:
■ provide a written response to you as soon as practicable, but within 14 days of receipt, or
■ in the event that this time limit cannot be achieved, we will send you an interim reply explaining why and telling you when we will provide you with a full reply.
and
If we do not meet our stated standards or service levels, let us know. We will try to resolve your concerns internally, but if this is not possible, we will let you know the various avenues of redress that are available to you.
I don't know when but this Service Charter vaporised several years ago. But what do you know, I have it, all 18 pages.
Perhaps it promised too much!
Back in mid 2017 (at least), CASA used to have a publicly available document. Service Charter of the Civil Aviation Safety Authority from Executive Manager, Corporate Affairs. Copyright date 2001.
You could back then find it easily just by googling that title. Google it now and be spellbound by what you find.
You could back then find it easily just by googling that title. Google it now and be spellbound by what you find.
Thread Starter
I sent an email to Ms Spence today (Friday 29 September 2023), attaching a letter in the following terms:
Duration of Part 141 Flight Training Certificates
I am writing to you in my personal capacity.
Background
You may recall my letter, dated 7 August 2023, about CASR Subpart E and medical certificates. Dr Aleck has subsequently confirmed that your position is that CASR 11.140 does not apply to a medical certificate. Thank you for that.
In the course of correspondence with CASA’s Regulatory Guidance Centre (the Centre) about the application of CASR Subpart 11.E to medical certificates, I asked for an example of a certificate to which, in the Centre’s opinion, CASR 11.140 does apply. By email dated 1 August 2023, the Centre nominated “a flight training certificate issued under Part 141 of CASR.”
I sought a clarification of that answer by email to the Centre dated 1 August 2023. My email said:
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.
By email to the Centre dated 23 August 2023 I sought an update on progress on a response to my 1 August 2023 email.
As I had no (and still have no) record of any response to either my email of 1 August or 23 August, I sent another email to the Centre on 21 September 2023. My email said:
As more than 30 working days have passed since I sent my clarification question and more than 15 working days have passed since I sought an update on progress, and because I have received nothing in response, could you at least do me the courtesy of:
- confirming receipt of this email, my email of 23 August 2023 and my email of 1 August 2023, and
- informing me of whether you intend to provide an answer to the clarification question I put in my email of 1 August 2023 and reiterated in my email of 23 August 2023 (in the trail below).
I have no record of any response from the Centre. It is now the last working day of September and two working months from the date of my original clarification question. I have little choice but to conclude that I am being ignored or CASA’s processes have malfunctioned. Accordingly, I make a request to directly to you.
My request to you
I request that you inform me of what CASA considers to be the provision of CASR that 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.
Yours sincerely
I am writing to you in my personal capacity.
Background
You may recall my letter, dated 7 August 2023, about CASR Subpart E and medical certificates. Dr Aleck has subsequently confirmed that your position is that CASR 11.140 does not apply to a medical certificate. Thank you for that.
In the course of correspondence with CASA’s Regulatory Guidance Centre (the Centre) about the application of CASR Subpart 11.E to medical certificates, I asked for an example of a certificate to which, in the Centre’s opinion, CASR 11.140 does apply. By email dated 1 August 2023, the Centre nominated “a flight training certificate issued under Part 141 of CASR.”
I sought a clarification of that answer by email to the Centre dated 1 August 2023. My email said:
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.
By email to the Centre dated 23 August 2023 I sought an update on progress on a response to my 1 August 2023 email.
As I had no (and still have no) record of any response to either my email of 1 August or 23 August, I sent another email to the Centre on 21 September 2023. My email said:
As more than 30 working days have passed since I sent my clarification question and more than 15 working days have passed since I sought an update on progress, and because I have received nothing in response, could you at least do me the courtesy of:
- confirming receipt of this email, my email of 23 August 2023 and my email of 1 August 2023, and
- informing me of whether you intend to provide an answer to the clarification question I put in my email of 1 August 2023 and reiterated in my email of 23 August 2023 (in the trail below).
I have no record of any response from the Centre. It is now the last working day of September and two working months from the date of my original clarification question. I have little choice but to conclude that I am being ignored or CASA’s processes have malfunctioned. Accordingly, I make a request to directly to you.
My request to you
I request that you inform me of what CASA considers to be the provision of CASR that 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.
Yours sincerely
Thread Starter
I received an email from Ms Spence in the following terms yesterday (13 October 2023):
My response today (14 October 2023):
I can confirm that we have received your requests and I understand the Guidance Delivery Centre (GDC) will be in touch with you soon with answers to your questions.
For future requests for advice from the GDC, you may wish to consider submitting your request through our web portal. This means you can track the status of your enquiry, noting the GDC generally tries to respond to requests within 10 working days.
Kind regards
For future requests for advice from the GDC, you may wish to consider submitting your request through our web portal. This means you can track the status of your enquiry, noting the GDC generally tries to respond to requests within 10 working days.
Kind regards
Thank you for that.
I look forward to hearing from the Guidance Centre, to which I have already emailed the same one-sentence supplementary question – singular - on 1 August, 23 August and 21 September 2023. That question was in response to emails sent to me by the Guidance Centre arising from my original questions submitted through ‘the portal’.
It seems to me that the process ‘tail’ is wagging the ‘dog’ here. My three emails to the Guidance Centre asking the same supplementary question were evidently ignored - despite email being a ubiquitous means of communication these days – because CASA has built a ‘portal’ and if a person does not ask a question through ‘the portal’ the computer says: No!
There should at least be a response to any email that will not be actioned by the Guidance Centre for whatever reason, stating - first - that the email will not be actioned by the Guidance Centre and - secondly - that ‘the portal’ is the only path to action. But that would of course point up the ‘tail wagging the dog’ issue. If the Guidance Centre was established by CASA for purposes including assisting ‘the industry’ to understand CASA’s interpretations of the rules, CASA should have effective processes in place to receive and respond in a timely way to questions submitted through whatever ordinary means the questioner chooses.
On the general subject of responses to correspondence, I note that CASA is the only institution with which I have ever dealt that does not currently acknowledge – even automatically in the case of emails - the receipt of correspondence sent to the institution’s CEO. I have worked in organisations – government and private - in which the performance measure was personal acknowledgement – by someone – within 30 minutes of receipt of incoming correspondence to the CEO or other senior personnel. Given the ease with which CASA IT staff could arrange a system of automatic acknowledgement of receipt of emails, it seems to me that the current practice of you not acknowledging the receipt of emails is a deliberate choice.
From my perspective, a lack of acknowledgement of receipt leaves me in doubt whether my emails have actually been received at all or are being ignored if they have been received. I should not be left in that kind of doubt for 14 days by a government agency. I can count on the fingers of one hand the number of times I have written to a CEO of CASA in the 28 years since its establishment, and I do not write on matters of trivia.
All of that said, my views and experience could be unusual. I anticipate that the results of the questions about flexibility, efficiency and bureaucracy in the recent survey about aviation safety information and education will shed light on general views about those issues.
I now look forward to receiving a substantive (and hopefully convincing) answer to my one-sentence question, the answer to which should also be one sentence, within three months of my having first asked it of CASA on 1 August 2023.
Regards
I look forward to hearing from the Guidance Centre, to which I have already emailed the same one-sentence supplementary question – singular - on 1 August, 23 August and 21 September 2023. That question was in response to emails sent to me by the Guidance Centre arising from my original questions submitted through ‘the portal’.
It seems to me that the process ‘tail’ is wagging the ‘dog’ here. My three emails to the Guidance Centre asking the same supplementary question were evidently ignored - despite email being a ubiquitous means of communication these days – because CASA has built a ‘portal’ and if a person does not ask a question through ‘the portal’ the computer says: No!
There should at least be a response to any email that will not be actioned by the Guidance Centre for whatever reason, stating - first - that the email will not be actioned by the Guidance Centre and - secondly - that ‘the portal’ is the only path to action. But that would of course point up the ‘tail wagging the dog’ issue. If the Guidance Centre was established by CASA for purposes including assisting ‘the industry’ to understand CASA’s interpretations of the rules, CASA should have effective processes in place to receive and respond in a timely way to questions submitted through whatever ordinary means the questioner chooses.
On the general subject of responses to correspondence, I note that CASA is the only institution with which I have ever dealt that does not currently acknowledge – even automatically in the case of emails - the receipt of correspondence sent to the institution’s CEO. I have worked in organisations – government and private - in which the performance measure was personal acknowledgement – by someone – within 30 minutes of receipt of incoming correspondence to the CEO or other senior personnel. Given the ease with which CASA IT staff could arrange a system of automatic acknowledgement of receipt of emails, it seems to me that the current practice of you not acknowledging the receipt of emails is a deliberate choice.
From my perspective, a lack of acknowledgement of receipt leaves me in doubt whether my emails have actually been received at all or are being ignored if they have been received. I should not be left in that kind of doubt for 14 days by a government agency. I can count on the fingers of one hand the number of times I have written to a CEO of CASA in the 28 years since its establishment, and I do not write on matters of trivia.
All of that said, my views and experience could be unusual. I anticipate that the results of the questions about flexibility, efficiency and bureaucracy in the recent survey about aviation safety information and education will shed light on general views about those issues.
I now look forward to receiving a substantive (and hopefully convincing) answer to my one-sentence question, the answer to which should also be one sentence, within three months of my having first asked it of CASA on 1 August 2023.
Regards
The following 3 users liked this post by Clinton McKenzie:
Thread Starter
CASA answered my question yesterday (Wednesday 18 October 2023). I have underlined what CASA highlighted:
Let’s assume CASA’s interpretation is correct, and that a tranche of regulations that are described as being about the format and content of authorisation documents, and are expressed as obligations about those matters for the evident purpose of ensuring consistency of format and content of pieces of squashed tree – either actual or electronic – also have buried deep in them a stand-alone power and discretion to decide the day on which the authorisation evidenced by the document ceases. If that’s correct, it’s just another example of a fundamentally important provision located in an entirely counter-intuitive part of the complex and convoluted dog’s breakfast that is the yet-to-be-completed regulatory ‘reform’ program.
You’d think that provision for the duration of Part 141 flight training certificates would be dealt with in either in Part 141 or in Subpart 11.BA, the latter of which, according to CASR 11.010(3A), “contains rules about granting authorisations, including the duration of, and the imposition of conditions on, authorisations.” But no: Let’s bury that in a tranche of provisions that deal with the format and content of documents.
This is a typical conflation of the decision horse with documentation of the decision cart. Various powers and discretions exist in regulations to grant an authorisation, to impose conditions on the authorisation and, in some cases, to limit the duration of the authorisation. If and when those powers and discretions have been validly exercised, obligations then arise as to the format and content of the document evidencing those decisions. The piece of squashed tree is just evidence of the authorisation. Look, for example, at CASRs 11.060 and 11.065, with my underlining added:
Then look at the all of the provisions in Subpart 11.C. They are all about the format and content of pieces of squashed tree (except, according to CASA, CASR 11.110 which includes a power to specify a day on which the authorisation evidenced by the squashed tree ceases).
So there it is: A provision that imposes obligations as to what information must be included on a document evidencing an authorisation somehow includes a stand-alone power and discretion to set a day when the authorisation evidenced by the document ceases. I will bet folding money that the words in brackets in paragraph 11.110(2)(c) and the whole of paragraph 11.110(2)(d) were added to draft CASR 11.110 as a consequence of someone coming up with a last minute bright idea about how to make the regulations ‘better’.
My supplementary questions sent today (Thursday 19 October 2023):
1. Does CASA consider that a regulation, which imposes an obligation as to what words must appear on an authorisation document, includes a stand-alone power and discretion to decide any of the substance of the actual authorisation to be described by the document?
2. Does CASA consider that the obligation in CASR 11.110(2)(a), that an authorisation document must set out what the authorisation is, includes a stand-alone power and discretion to decide what the authorisation is?
3. Does CASA consider that the obligation in CASR 11.110(2)(b), that an authorisation document must set out any conditions applicable to the authorisation, includes a stand-alone power and discretion to decide what those conditions are?
4. Does CASA consider that the obligation in CASR 11.110(2)(d), that an authorisation document must set out any other information CASA thinks should be included, includes a stand-alone power and discretion to put words on the authorisation document that have any effect on what the authorisation itself is and does?
5. Given CASA's interpretation of CASR 11.110(2)(c), to whom has CASA delegated the power and discretion under that provision to set the day on which an authorisation subject to that decision will cease?
6. Does CASA consider the decision under CASR 11.110(2)(c), to set the day on which an authorisation will cease, to be reviewable by the AAT?
As background to question 7, I note that CASR 11.010 says in part:
"(3A) Subpart 11.BA contains rules about granting authorisations, including the duration of, and the imposition of conditions on, authorisations.
(4) Subpart 11.C provides for the form of authorisation documents and other matters related to such documents."
7. Given CASA's interpretation of CASR 11.110(2)(c), will CASA press for amendments to CASRs 11.010(3A) and 11.010(4) on the ground that they are misleading in their terms? On CASA's interpretation, subpart 11.C is not confined to the format and content of authorisation documents because - according to CASA - it extends to containing the power and discretion to decide the duration of the authorisation itself, in the case of authorisations to which CASR 11.110(2)(c) apply and whose duration is not determined by other regulations. Some readers might construe CASRs 11.010(3A) and 11.010(4) and the headings of Subpart 11.C and of the provisions within it, as meaning what they say: That they are just about the format and content of authorisation documents, not the substance of the authorisations themselves.
I’ll post CASA’s answers when I receive them.
Paragraph 11.110(2)(c) of the Civil Aviation Safety Regulations 1998 (CASR), which is highlighted below in the context of the regulation reproduced below in its entirety:
11.110 Authorisation document—other authorisations
(1) This regulation applies to an authorisation to which none of regulations 11.090 to 11.105 apply.
(2) The authorisation must set out:
(a) what the authorisation is; and
(b) any conditions applicable to it; and
(c) when it came into effect, and, if it will cease (either under a provision of these Regulations or on a day set by CASA) if not sooner cancelled—the day when it will cease; and
(d) any other information CASA thinks should be included.
None of the regulations mentioned in subregulation 11.110(1) applies to a CASR Part 141 certificate.
Part 11 is silent as to when an authorisation ceases. This means CASA can decide to issue an authorisation with no expiry date, or with an expiry date, subject to any provision in the regulations relating to the specific authorisation type in question.
11.110 Authorisation document—other authorisations
(1) This regulation applies to an authorisation to which none of regulations 11.090 to 11.105 apply.
(2) The authorisation must set out:
(a) what the authorisation is; and
(b) any conditions applicable to it; and
(c) when it came into effect, and, if it will cease (either under a provision of these Regulations or on a day set by CASA) if not sooner cancelled—the day when it will cease; and
(d) any other information CASA thinks should be included.
None of the regulations mentioned in subregulation 11.110(1) applies to a CASR Part 141 certificate.
Part 11 is silent as to when an authorisation ceases. This means CASA can decide to issue an authorisation with no expiry date, or with an expiry date, subject to any provision in the regulations relating to the specific authorisation type in question.
Let’s assume CASA’s interpretation is correct, and that a tranche of regulations that are described as being about the format and content of authorisation documents, and are expressed as obligations about those matters for the evident purpose of ensuring consistency of format and content of pieces of squashed tree – either actual or electronic – also have buried deep in them a stand-alone power and discretion to decide the day on which the authorisation evidenced by the document ceases. If that’s correct, it’s just another example of a fundamentally important provision located in an entirely counter-intuitive part of the complex and convoluted dog’s breakfast that is the yet-to-be-completed regulatory ‘reform’ program.
You’d think that provision for the duration of Part 141 flight training certificates would be dealt with in either in Part 141 or in Subpart 11.BA, the latter of which, according to CASR 11.010(3A), “contains rules about granting authorisations, including the duration of, and the imposition of conditions on, authorisations.” But no: Let’s bury that in a tranche of provisions that deal with the format and content of documents.
This is a typical conflation of the decision horse with documentation of the decision cart. Various powers and discretions exist in regulations to grant an authorisation, to impose conditions on the authorisation and, in some cases, to limit the duration of the authorisation. If and when those powers and discretions have been validly exercised, obligations then arise as to the format and content of the document evidencing those decisions. The piece of squashed tree is just evidence of the authorisation. Look, for example, at CASRs 11.060 and 11.065, with my underlining added:
11.060 Notice of decision
(1) After making a decision on an application, CASA must give the applicant written notice of the decision, including:
(a) if the decision was to grant the authorisation applied for:
(i) if these Regulations provide for a certificate or other document to be issued to the applicant as evidence that he or she holds the authorisation—that document; and
…
11.065 When authorisation comes into effect
An authorisation comes into effect:
(a) on a day stated for that purpose in a document that is evidence of the holding of the authorisation, or in any relevant notice under subregulation 11.060(1); or
(b) if no day is so stated—on the date of the document or notice.
(1) After making a decision on an application, CASA must give the applicant written notice of the decision, including:
(a) if the decision was to grant the authorisation applied for:
(i) if these Regulations provide for a certificate or other document to be issued to the applicant as evidence that he or she holds the authorisation—that document; and
…
11.065 When authorisation comes into effect
An authorisation comes into effect:
(a) on a day stated for that purpose in a document that is evidence of the holding of the authorisation, or in any relevant notice under subregulation 11.060(1); or
(b) if no day is so stated—on the date of the document or notice.
Then look at the all of the provisions in Subpart 11.C. They are all about the format and content of pieces of squashed tree (except, according to CASA, CASR 11.110 which includes a power to specify a day on which the authorisation evidenced by the squashed tree ceases).
Subpart 11.C—Authorisation documents, certificates and related matters
11.090 Authorisation document—authorisations to which Chicago Convention, Annex 1 applies
…
(2) The authorisation must comply with Chapter 5 of [Annex 1].
11.095 Authorisation document—maintenance operation authorisations
…
(2) The authorisation must comply with paragraph 8.7.1.2 of [Annex 6 of the Convention].
11.100 Registration certificate (Chicago Convention, Annex 7)
…
(2) The certificate must be in a form that complies with section 7.1 of Annex 7 [of the Convention]
11.105 Certificate of Airworthiness (Chicago Convention, Annex 8)
…
(2) The certificate must be in a form that complies with section 7 of Annex 8 [of the Convention].
…
11.115 Replacement documents
CASA may issue a replacement authorisation document in place of one …
[And in between 11.105 and 11.115 is the key provision which I’ve moved to last for clarity:]
11.110 Authorisation document—other authorisations
(1) This regulation applies to an authorisation to which none of regulations 11.090 to 11.105 apply.
(2) The authorisation must set out:
(a) what the authorisation is; and
(b) any conditions applicable to it; and
(c) when it came into effect, and, if it will cease (either under a provision of these Regulations or on a day set by CASA) if not sooner cancelled—the day when it will cease; and
(d) any other information CASA thinks should be included.
11.090 Authorisation document—authorisations to which Chicago Convention, Annex 1 applies
…
(2) The authorisation must comply with Chapter 5 of [Annex 1].
11.095 Authorisation document—maintenance operation authorisations
…
(2) The authorisation must comply with paragraph 8.7.1.2 of [Annex 6 of the Convention].
11.100 Registration certificate (Chicago Convention, Annex 7)
…
(2) The certificate must be in a form that complies with section 7.1 of Annex 7 [of the Convention]
11.105 Certificate of Airworthiness (Chicago Convention, Annex 8)
…
(2) The certificate must be in a form that complies with section 7 of Annex 8 [of the Convention].
…
11.115 Replacement documents
CASA may issue a replacement authorisation document in place of one …
[And in between 11.105 and 11.115 is the key provision which I’ve moved to last for clarity:]
11.110 Authorisation document—other authorisations
(1) This regulation applies to an authorisation to which none of regulations 11.090 to 11.105 apply.
(2) The authorisation must set out:
(a) what the authorisation is; and
(b) any conditions applicable to it; and
(c) when it came into effect, and, if it will cease (either under a provision of these Regulations or on a day set by CASA) if not sooner cancelled—the day when it will cease; and
(d) any other information CASA thinks should be included.
So there it is: A provision that imposes obligations as to what information must be included on a document evidencing an authorisation somehow includes a stand-alone power and discretion to set a day when the authorisation evidenced by the document ceases. I will bet folding money that the words in brackets in paragraph 11.110(2)(c) and the whole of paragraph 11.110(2)(d) were added to draft CASR 11.110 as a consequence of someone coming up with a last minute bright idea about how to make the regulations ‘better’.
My supplementary questions sent today (Thursday 19 October 2023):
1. Does CASA consider that a regulation, which imposes an obligation as to what words must appear on an authorisation document, includes a stand-alone power and discretion to decide any of the substance of the actual authorisation to be described by the document?
2. Does CASA consider that the obligation in CASR 11.110(2)(a), that an authorisation document must set out what the authorisation is, includes a stand-alone power and discretion to decide what the authorisation is?
3. Does CASA consider that the obligation in CASR 11.110(2)(b), that an authorisation document must set out any conditions applicable to the authorisation, includes a stand-alone power and discretion to decide what those conditions are?
4. Does CASA consider that the obligation in CASR 11.110(2)(d), that an authorisation document must set out any other information CASA thinks should be included, includes a stand-alone power and discretion to put words on the authorisation document that have any effect on what the authorisation itself is and does?
5. Given CASA's interpretation of CASR 11.110(2)(c), to whom has CASA delegated the power and discretion under that provision to set the day on which an authorisation subject to that decision will cease?
6. Does CASA consider the decision under CASR 11.110(2)(c), to set the day on which an authorisation will cease, to be reviewable by the AAT?
As background to question 7, I note that CASR 11.010 says in part:
"(3A) Subpart 11.BA contains rules about granting authorisations, including the duration of, and the imposition of conditions on, authorisations.
(4) Subpart 11.C provides for the form of authorisation documents and other matters related to such documents."
7. Given CASA's interpretation of CASR 11.110(2)(c), will CASA press for amendments to CASRs 11.010(3A) and 11.010(4) on the ground that they are misleading in their terms? On CASA's interpretation, subpart 11.C is not confined to the format and content of authorisation documents because - according to CASA - it extends to containing the power and discretion to decide the duration of the authorisation itself, in the case of authorisations to which CASR 11.110(2)(c) apply and whose duration is not determined by other regulations. Some readers might construe CASRs 11.010(3A) and 11.010(4) and the headings of Subpart 11.C and of the provisions within it, as meaning what they say: That they are just about the format and content of authorisation documents, not the substance of the authorisations themselves.
