Proposed new Manual of Standards Part 138 (Aerial Work Operations) and regulation amendments – (CD 1919OS)

Too prescriptive and really difficult to follow - need to track back and forth through regulation / various MOS parts !!

Current rules allow for carriage of passengers/persons as essential crew for airwork and charter operations, no need for GA to have additional definitions of those being carried, we understand who is who already.

MOS 2.01 defines what we already know - quote - (e) 'a persons whose presence on the aircraft is solely and reasonably required to facilitate and aerial work operation'

Dual purpose flights are not a new thing and will add another layer.

Definitions - new task specialists why - we already have essential crew - again too prescriptive and change for the sake of change not for better results.

Positioning flight, etc - refer CASA aviation ruling 3/2004 see following:

Aviation Ruling - Classification of aerial work operations carrying passengers
Effective Date: This ruling is effective from 13 September 2004.
Catchwords: Classification of operations aerial work operations charter operations
CAR 206 media operations, aerial photography operations for multiple purposes passengers.

Information about rulings:
Aviation rulings are advisory documents setting out CASA’s policy on a particular issue. CASA makes rulings available to CASA officers and the public to ensure that there is a consistent policy adopted in administering particular aspects of the air safety regulatory regime.
Rulings are intended to apply to a range of factual situations and are necessarily general in nature.
CASA will proceed on the basis that a person who relies on a ruling is complying with the law, as long as that person:
• exercises due care in acting in reliance on the ruling — ie a person who carelessly misreads the text of a ruling will not be entitled to rely on that misreading;
• relies on the ruling in good faith — ie CASA will not allow a person to frustrate the intent of the ruling by adopting an extreme or contrived interpretation of the words of the ruling which results in consequences that were clearly unintended by CASA at the time the ruling was issued;

• only relies on the clear statements of fact and policy in the ruling — ie the ruling is completely self contained and does not permit any additional interpretation of the relevant law, or application of the policy to different fact situations.
A user of aviation rulings should also be aware that a ruling is only a statement of CASA’s policy. It is not a restatement of the law. Accordingly, while rulings are drafted to be consistent with the law referred to in the ruling as understood by CASA from time to time, they cannot displace any inconsistent legal requirements. You should notify CASA’s General Counsel if you believe that compliance with this ruling would lead to a breach of a legal requirement or if you believe that a ruling is based on an erroneous factual assumption.

Members of the public can contact CASA via its national number 131 757.

Aviation Ruling: Classification of aerial work operations carrying passengers Effective Date: This ruling is effective from 13 September 2004.
Catchwords: Classification of operations aerial work operations charter operations
CAR 206 media operations, aerial photography operations for multiple purposes passengers

Issue
1 This ruling states CASA’s position on the proper classification of certain operations involving the carriage of passengers for aerial work purposes and the application of CAR 206 and section 27 of the Act.

Background
2 Section 27 of the Civil Aviation Act 1988 (the Act) relevantly provides:
(2) Except as authorised by an AOC, or by a permission under section 27A:
(a) an aircraft shall not fly into or out of Australian territory; and
(b) an aircraft shall not operate in Australian territory; and
(c) an Australian aircraft shall not operate outside Australian territory.
…
(9) Subsection (2) applies only to the flying or operation of an aircraft for such purposes as are prescribed.

3 Regulation 206 of the Civil Aviation Regulations 1988 (CAR 1988) prescribes ‘commercial purposes’ for the purpose of subsection 27(9) of the Act. These include the ‘aerial work’ purposes in CAR 206(1)(a) and ‘charter’ purposes in CAR 206(1)(b). Subject to CAR 206, a person is prohibited from conducting operations for any of the commercial purposes prescribed in CAR 206 unless the person holds an AOC authorising those operations.

4 CASA understands that passengers are sometimes transported, for hire or reward, from A to B on a positioning flight before continuing on the same aircraft for an aerial work purpose. These passengers may also carry out aerial work activities between A and B.

5 Sometimes such operations also carry additional persons not involved in the aerial work purpose of the operation.

Ruling
6 In determining the application of CAR 206, CASA will determine the purpose(s) of an operation on the basis of the objectively ascertained purpose(s) of the operator in relation to the operation as a whole.

7 CASA may treat a series of individual flights as a single operation if the objectively ascertained purposes of the flights are the same. Whether CASA will treat a series of flights as an operation will depend on the circumstances of the flights – no statement of general application can apply in all situations.

8 The purpose of an operation is determined at the start of the first flight forming part of that operation.

9 CASA will classify as ‘aerial work’ a flight on which passengers are carried for the sole purpose of performing an aerial work activity during the flight. The role of such passengers should be detailed in the operations manual of the operator.

10 A flight (e.g. a positioning flight) will also be classified as ‘aerial work’ where a passenger is carried for the sole purpose of enabling the passenger to perform an aerial work activity on a subsequent flight in the same aircraft. This will be so even if the passenger does not perform any aerial work activity during the initial flight (i.e. the positioning flight). CASA will consider the initial flight to be part of a single operation the purpose of which is the performance of the aerial work activity during the subsequent flight.

11 If an operation of the type described in paragraph 10 also carries a passenger, for hire or reward, who is not performing an aerial work activity during that operation, then CASA will classify the operation as being for both ‘aerial work’ and ‘charter’ purposes.

12 An operation classified for more than 1 of the purposes in CAR 206 must comply with the requirements applicable to both classifications. Generally, a person who complies with the higher level classification (e.g. charter) will also comply with the lower level classification (e.g. aerial work). Guidance should be sought if there is any inconsistency between 2 (or more) sets of applicable regulatory requirements.

13 It is possible that the objectively ascertained purposes of an operation will be:

13.1 the carriage of a passenger for an aerial work purpose (as described in paragraph 9 above); and

13.2 the purpose of the transportation of that same passenger for hire or reward.

This could occur if an operation (conducted for hire) included a stop for the passenger to engage in an activity that does not contribute to any operational aspect of the aerial work purpose.

14 An example of this type of operation is the hire of an aircraft to carry a media employee (a passenger) for the purposes of conducting aerial photography (an aerial work purpose) and the stopping en route to carry out an interview related to the photography (a non-aerial work purpose). Even though the interview may relate to the aerial photography activity for media purposes, the interview is not one of the operational aspects of the aerial photography purpose. The carriage of the passenger for the conduct of interviews is therefore a charter purpose, and the operation will therefore be conducted for multiple purposes, as discussed in paragraph 11 above.

15 Another example of this type of operation is the hire of an aircraft for both carriage of ground-based fire fighters (passengers) to and from the base of a fire, and to engage in aerial dropping of water or fire retardant on the fire. The carriage of the ground-based fire fighters does not relate to the aerial work purpose of aerial dropping – the carriage of the ground-based fire fighters is not one of the operational aspects of the aerial dropping purpose. Hence the carriage of the ground-based fire fighters is not part of the same operation as the aerial dropping of water or fire retardant. On the other hand, carriage of a spotter for the aircraft, or the operator of the water bucket or hopper, does relate to the aerial dropping purpose, and will be regarded as part of the aerial dropping operation.

16 Examples of activities that would generally form part of the operational aspects of an aerial work operation include: en route refuelling necessary to continue the aerial work operation, the collection of equipment or provisions (including food etc) required during the conduct of the aerial work activity, overnight stops (including accommodation etc) necessary in the course of the aerial work operation, and stops to permit ground reconnaissance or similar activities that have the sole purpose of assisting the performance of the operational aspects of the aerial work activity.

Definitions
17 In this ruling:

‘AOC’ means an air operator’s certificate issued under section 27 of the Act; ‘CAR’ means the Civil Aviation Regulations 1988;
‘operation’ means, in accordance with this ruling, an individual flight or a series of flights conducted in the same aircraft;

‘operator’, in relation to an operation, means the person holding the AOC under which an operation is conducted;

‘passenger’ has the meaning given in subregulation 2(1) of the CAR; and ‘the Act’ means the Civil Aviation Act 1988.


[signed] Bruce Byron
Director of Aviation Safety and Chief Executive Officer

12 September 2004

This does not apply to GA operators – Emergency Services and Marine pilot transfers and IFR do not fit into this proposed regulation. They are already covered in current regulations and should stay where they are or be put under Part 133!! All of this basically applies to these operations and has no right to be under a ‘certificate’, this does allow for any form of oversight once a certificate is granted and given the nature of these operations there needs to be regulatory oversight - they should remain under an AOC.

For GA operators - We already have rules for flight over populous areas and public gathering CAR157.

Addition of turbine usage monitoring systems too prescriptive limiting aircraft types and operations ie, EMS, frost protection, operators will be required to upgrade aircraft at a massive cost in the future– these proposed new regulations are not supposed to do that.

No such thing as a suitable forced landing area for helicopters you take what you get and do all you can at the time of action and try and prevent injury to everyone and everything as best as can be

To prescriptive -
These requirements are already in the respective aircraft flight manuals and/or POH's and should be common knowledge to all pilots - it is not necessary at all to be regurgitated and meshed into a CASA regulation!

Where is the safety case for this change ?? adding another layer that is not needed and will cause confusion

To prescriptive -
These requirements are already in the respective aircraft flight manuals and/or POH's and should be common knowledge to all pilots - it is not necessary at all to be regurgitated and meshed into a CASA regulation!

Where is the safety case for this change ?? adding another layer that is not needed and will cause confusion

Nothing to do with GA Airwork operations way out of the context of what we do!!!! Again EMS & Marine Pilot Transfer should not be here!!

Once again to prescriptive – the unsafe issues here are the crossovers between CAR217 and Part 61 (both of which needs to be completely pulled apart and fixed) too many grey areas here – especially for those core GA operations

Nothing to do with GA Airwork operations way out of the context of what we do!!!! Again EMS & Marine Pilot Transfer should not be here!!

Once again to prescriptive – the unsafe issues here are the crossovers between CAR217 and Part 61 (both of which needs to be completely pulled apart and fixed) too many grey areas here – especially for those core GA operations

Why is this applicable to our GA ??

Far too prescriptive and adding layers where not needed with all the training.

Back to Part 61 – fix that 1st before you start with this – already CAR 217 is working - not absolutely perfect but can be managed to address this if needed!!?? And might we say reasonably easily read and understand.

Filling gaps caused by part 61 and 141 /142 so now we adding another layer – need to stop.

An operator has and can create separate Airwork SOP’s and then drum down what is acceptable or not based on how they carry out a specific operation and who can do and what is required. That is the intent of an operations manual to define this – and is already done.

It needs a full review and repair with operators providing content – not those who have no experience in these operations – have any of the writers of this been out to see how it actually works??? It would seem not.

Operators already have their training system in place for both crew and ground crew as needed, and for those with contract clients they provide their own trained persons who are all involved in a briefing for the operator requirements before job starts.

How can you prescribe this in a regulation, each type of airwork operation is unique and it needs operators input to define procedures – not CASA unless your writers get out into the field and see what actually happens.

Again back to Part 61 / CAR 217 – why is this here!! this is Part 133
and new definition of task specialist is totally unnecessary for GA!!

Another layer that is too prescriptive.

It needs a full review and repair with operators providing content – not those who have no experience in these operations – have any of the writers of this been out to see how it actually works??? It would seem not.

Operators already have their training system in place for both crew and ground crew as needed, and for those with contract clients they provide their own trained persons who are all involved in a briefing for the operator requirements before job starts.

How can you prescribe this in a regulation, each type of airwork operation is unique and it needs operators input to define procedures – not CASA unless your writers get out into the field and see what actually happens.

These should not be written into regulation at all - far too prescriptive - GA operator's and contracted clients already have this in place when carrying out higher risk operations, and managed through their own set of procedures.

GA wants to continue to be managed through an AOC.

Part 138 is a certificate not an AOC, so if we put this into regulation how is it going to be monitored by CASA, do you have a process in place to oversight a certificate holder ??!! My understanding is NO you do not.

These should not be written into regulation at all - far too prescriptive - GA operator's and contracted clients already have this in place when carrying out higher risk operations, and managed through their own set of procedures.

Each GA operator must comply with the weapons act for each state they work in, this is the basic start of any shooting operations - CASA cannot come in and override these directions.
We already have CAR133 & CAR 144 approvals, but these probably need some attention.
Far too prescriptive and not workable, lets work and fix what we have as they can be easily read and understood unlike the new CASR's

NO - and AOC's should be continued for airwork and charter operator's, NOT certificates they do not have CASA oversight once issued, operators currently have spent considerable time and money gaining and AOC and going over to a certificate and allowing private operators to continue working without a certificate is a very unfair playing field!!
A very rough personal analysis of ATSB data indicates that over the last 15 years, approximately 5-7 times as many fatal accidents occured per hour during station activities (mostly mustering) conducted privately compared to commercially.
This is a genuine safety case and cause for concern, however it is difficult for CASA to see the issue with the data presented to them due to the ATSB not specifying (or incorrectly specifying) many of these accidents as one of either commercial or private.
There are multiple cattle station owners (largely corporate companies) across Northern Australia that own a great deal more than one or two stations. These companies own more than 5 helicopters (up to 10 or 12 Helicopters), employ pilots as “stationhands”, and run essentially a commercial company, with helicopters and pilots being shared across multiple stations. These helicopters are used to conduct mostly mustering and other aerial work tasks, but also ferry vets/bore drillers/yard builders/staff etc (ie, not employees of the company) to and from town.
Without having clear numbers in front of me, some of these companies are doing in excess of 10,000 hours per year.
Despite the clear increased fatal accident rate per hour, the high number of hours and therefore hugely greater risk and also despite the fact that these employees who are flying the helicopters are hired and remunerated purely based upon their suitability as a pilot, this is done all done “privately”, with no oversight from CASA, no checks and balances on the training and standards of pilots, and minimal rules applicable.
With virtually no ongoing check and training legally required, no flight and duty rules applicable, and minimal other regulatory burden or even regulatory awareness, these pilots can and do fly nearly 2000 hours a year, carrying outside passengers from A to B and doing aerial work, with the only contact with CASA/’aviation’ people being the Flight Review every 2 years!!
Whilst it is not suggested that easy certification through an AOC or watered down 138 Certificate to operate commercially should be offered to these private operators, it is madness for the Part 138 writers to state that they are not recognising private vs commercial with these new rules as purely risk based, when quite clearly the level of risk is clearly delineated between commercial and private operations.
It would be negligent to not use this opportunity to help the private aerial work sector of the industry achieve a better safety outcome with further oversight and applicability of rules particularly the “quasi-private” operations mentioned above.
Because of these accidents that private operators contribute to, in much higher numbers insurance premiums are also increasing across the board and the AOC holder is now suffering the very heavy financial consequence as a result of the private sectors lack of safety and standards and no oversight from CASA because of their ‘private’ status and not our responsibility - did I hear someone say ‘safe skies for everyone???.

There is no safety case to show that you have consulted with other AOC holders who have the knowledge and skills to be able to address this satisfactorily, until you do this no one will ever accept or condone such.

Part 138 should be cancelled, and existing regulations under the CAR's & CAO's amended as they are easily read and understood and nowhere near as complex and voluminous to manage as the CASR's.
GA operators will most certainly will have a need to employ or contract someone to manage the paperwork and infrastructure issues arising out of this regulation (and others aligned with it) and in these times it is an expense that is not warranted or is affordable or is going to make an operator any more safer.
Because of the overwhelming volume of information and prescriptive regulations it will have the reverse effect of making it unsafe for them.

As GA operator’s we want to work within the guidelines of the Regulations and are happy with CASA oversite as a regulator but CASA seems to have lost its way over the last ten years or so and we are losing trust in CASA’s ability to manage General Aviation (not from the ground level of FOI’s / AWI’s, CMT leaders who are suffering from these poorly written regulations and unable to get responses or assistance from those above them to provide operators with an answer) but from the levels of management above.

For General Aviation:

 We need a regulator who can draw a line between us and Qantas and also draw a line between aeroplanes and helicopters as they are both unique in the way they are operated.

 We need simple to read and understand outcome base regulations, not prescriptive

 We need a regulator who will not brush us aside as with the TWG

 We need AOC’s not Certificates

 We need across the board definitions – researching through definitions is also another minefield where they are the same term but do not necessarily have the meaning for different sections of the regulations – how can we determine the correct definition?? There is no way to define or argue a fact!!!
 And overall we need to remove the term ‘strict liability ‘ - How can this stand as neither operators, technical writers nor CASA staff can understand the rules and when asked for a response to a question none is forthcoming on many occasions ‘especially in writing’ - see extract following from CASA website at:

https://www.casa.gov.au/standard-page/strict-liability

“If you are charged with a strict liability offence, the prosecution doesn’t have to prove intention, knowledge, recklessness or even negligence. In other words, it doesn’t matter whether you meant to break the rules or knew you were doing it”.
Why we use it - “Strict liability is imposed where the benefit to the community overrides any potential disadvantage to the person charged. In other words, where it’s in the public interest that you know what the rules are and take all reasonable steps to follow them.
That’s why it applies to most road rules, as well as a wide range of other laws involving public health, safety, the environment and financial or corporate regulation. It’s common in aviation too—almost every civil aviation rule in Australia is a strict liability offence.
You are still innocent until proven guilty
If you are charged with a strict liability offence, you aren’t automatically guilty.
It’s not up to you to prove your innocence but up to a prosecutor to prove that you have broken the rules and prove it beyond a reasonable doubt.”

 By way of background, the process of Part 138 amendment commenced in 2010. It belies reason that amidst a pandemic, an exceptionally difficult operational environment and period of uncertainty, that CASA has now seen fit to enter into a consultation period, 10 years in the making, allowing a five week window for Operators, under pressure to respond to regulatory information that has grown in excess its original size, without clarity or reason.

What is even more concerning is the apparent disregard by CASA, of the recommendations of the Technical Working Group, as reported from their most recent meeting on 12th march 2020? (extract below).
'Whist not endorsing the MOS, the TWG acknowledges that it will need to go out for public consultation for CASA to receive broader industry feedback. The TWG also noted that the risk of conducting public consultation with the MOS in its current form is that respondents may find the MOS too complex to understand.
The TWG recommended that the public consultation be structured in a way that will enable respondents to more easily provide feedback. It was also recommended that that the public consultation asks industry for feedback on aspects of the structure of the MOS'.
The Technical Working Group for Part 138, do not endorse the Manual of Standards that has now been published for consultation, yet CASA, despite looking to TWG’s for advice and guidance on industry specific issues, seems to have completely ignored their recommendations and pursuing its’ own objectives.

As stipulated in the Civil Aviation Act 1988, Section 9, one of CASA’s primary functions is to develop and promulgate appropriate, clear and concise aviation safety standards. Ignoring the well-informed Technical Working Group, engaging a consultation process on a cumbersome MOS that lacks clarity, and entering into a consultation period whilst Operators are already under pressure, does little to instil industry confidence or comply with a core legislative foundation.

Until we are able to map the regulations proposed and current which is a massive task when you do not have the resources such as CASA has and you are also continuing to manage business and family, no small operator is going to be able to manage to respond to this survey in the time you have given with sufficient detail or even understanding of what is proposed.

As a united force we also believe it should be stopped right now as reading through, and creating scenarios applicable to our operations under current CAR’s/CAO’s and tying them to proposed CASR’s/MOS’s we are finding major disparities that do not show any safety improvement outcomes, but do actually increase risk, and also creates unnecessary financial burdens.

CASA needs to return to Part 61 and fix that 1st, we have researched and found on the CASA website listing of instruments that have been implemented from the inception of Part 61 and obviously use to correct omissions and revisions to procedures, for airwork probably the most glaring is the need for a 141.035 approval to carry out mentoring training for new mustering pilots – which somehow missed being included in the initial Part 61 – the same also applies to AG training but so far no one has prepared an approval for that, but it also needs to be there.. we have additions of ratings / endorsements such as the fire rating which never existed in the past and in adding this in caused a massive problem with our fire fighting efforts around Australia in the past fire season, and if not removed and reverted back to pre Part 61 will continue to cause problems for those who have the skills and are needed on the front line.

https://www.casa.gov.au/standard-page/flight-crew-licensing-instruments

How can this many exemptions (not to mention the additional approvals 141.035 etc) that have been issued since Part 61 came into effect justify the continued effectivity of the Part 61 rule set. It would seem that those who prepared this were very lacking in experience in this area and also lack of consultation with those who know. We are dangerously heading down this path again with the push out of these other regulations prepared unskilled and inexperienced writers and overseer’s.

The new CASR’s 1998 were supposed tor remove the necessity for exemptions and approvals!!!

The CARS and CAO’s are easy to read and understand, albeit they do need, for the current climate to be tidied up a little in some areas but they are a solid foundation that everyone is able to understand and work with and are outcome based, they should be continued and expanded to suit todays aviation climate, the proposed CASR’s do not !! they are far to prescriptive and do not allow for growth and change in the industry.

Other countries (close neighbours)have managed to transition over in a very short period of time, for example CASA PNG managed this whole process in 2yrs after 1yr of writing and negotiations with NZ, with a small team of professionals and industry, for example their Part 61 Regulation is only 49 pages – outcome based and captures everything Australia’s Part 61 achieves in 5 volumes totalling 1874 pages (not including the MOS) – prescriptive legislation, NZ Part 61 is 99 pages outcome based.

CASA we remind you of your functions from the ACT (it would seem you are not following these):

CASA's functions:
(1) CASA has the function of conducting the safety regulation of the following, in accordance with this Act and the regulations:
(a) civil air operations in Australian territory;
(b) the operation of Australian aircraft outside Australian territory;
(ba) ANZA activities in New Zealand authorised by Australian AOCs with ANZA privileges;
by means that include the following:
(c) developing and promulgating appropriate, clear and concise aviation safety standards;
"aviation safety standards" means standards relating to the following:
(a) the flight crews engaged in operations of aircraft;
(b) the design, construction, maintenance, operation and use of aircraft and related
equipment;
(c) the planning, construction, establishment, operation and use of aerodromes;
(d) the establishment and use of airspace;
(e) the planning, construction, establishment, maintenance, operation and use of:
(i) services and facilities of the kind covered by paragraph 8(1)(a) of the Air Services
Act 1995 ; and
(iii) services of the kind referred to in paragraph 6(1)(b) of the Australian Maritime
Safety Authority Act 1990 to the extent that those services use aircraft;
and any construction associated with those facilities or services;
(f) the personnel engaged in:
(i) the maintenance of aircraft and related equipment; or
(ii) anything referred to in paragraph (c) or (e).
(d) developing effective enforcement strategies to secure compliance with aviation safety standards;
(da) administering Part IV (about drug and alcohol management plans and testing);
(e) issuing certificates, licences, registrations and permits;
(f) conducting comprehensive aviation industry surveillance, including assessment of safety-related decisions taken by industry management at all levels for their impact on aviation safety;
(g) conducting regular reviews of the system of civil aviation safety in order to monitor the safety performance of the aviation industry, to identify safety-related trends and risk factors and to promote the development and improvement of the system;
(h) conducting regular and timely assessment of international safety developments.
(2) CASA also has the following safety-related functions:
(a) encouraging a greater acceptance by the aviation industry of its obligation to maintain high standards of aviation safety, through:
(i) comprehensive safety education and training programs; and
(ii) accurate and timely aviation safety advice; and
(iii) fostering an awareness in industry management, and within the community generally, of the importance of aviation safety and compliance with relevant legislation;
(b) promoting full and effective consultation and communication with all interested parties on aviation safety issues.
(3) CASA also has the following functions:
(aa) implementing the ANZA mutual recognition agreements;
(a) cooperating with the Australian Transport Safety Bureau in relation to investigations under the Transport Safety Investigation Act 2003 that relate to aircraft;
(b) any functions conferred on CASA under the Civil Aviation (Carriers' Liability) Act 1959 , or under a corresponding law of a State or Territory;
(ba) enforcing the requirements of this Act and the regulations in relation to insurance and financial arrangements required under Part IVA of the Civil Aviation (Carriers' Liability) Act 1959 ;
(c) any functions conferred on CASA under the Air Navigation Act 1920 ;
(ca) entering into 83 bis agreements on behalf of Australia;
(cb) any functions conferred on CASA under the Aviation Transport Security Act 2004 ;
(cc) any functions conferred on CASA under the Airspace Act 2007 or under regulations under that Act;
(cd) any functions conferred on CASA under the International Interests in Mobile Equipment (Cape Town Convention) Act 2013 or rules made under that Act;
(d) any other functions prescribed by the regulations, being functions relating to any matters referred to in this section;
(e) promoting the development of Australia's civil aviation safety capabilities, skills and services, for the benefit of the Australian community and for export;
(f) providing consultancy and management services relating to any of the matters referred to in this section, both within and outside Australian territory;
(g) any functions incidental to any of the functions specified in this section.
(4) In performing the function under paragraph (3)(f), CASA may, under a contract with a foreign country or with an agency of a foreign country, provide services for that country or agency in relation to the regulation of the safety of air navigation or any other matter in which CASA has expertise. Those services may include conducting safety regulation in relation to foreign registered aircraft under the law of a foreign country.
As GA operator’s we want to work within the guidelines of the Regulations and are happy with CASA oversite as a regulator but CASA seems to have lost its way over the last ten years or so and we are losing trust in CASA’s ability to manage General Aviation (not from the ground level of FOI’s / AWI’s, CMT leaders who are suffering from these poorly written regulations and unable to get responses or assistance from those above them to provide operators with an answer) but from the levels of management above.

For General Aviation:

 We need a regulator who can draw a line between us and Qantas and also draw a line between aeroplanes and helicopters as they are both unique in the way they are operated.

 We need simple to read and understand outcome base regulations, not prescriptive

 We need a regulator who will not brush us aside as with the TWG

 We need AOC’s not Certificates

 We need across the board definitions – researching through definitions is also another minefield where they are the same term but do not necessarily have the meaning for different sections of the regulations – how can we determine the correct definition?? There is no way to define or argue a fact!!!
 And overall we need to remove the term ‘strict liability ‘ - How can this stand as neither operators, technical writers nor CASA staff can understand the rules and when asked for a response to a question none is forthcoming on many occasions ‘especially in writing’ - see extract following from CASA website at:

https://www.casa.gov.au/standard-page/strict-liability

“If you are charged with a strict liability offence, the prosecution doesn’t have to prove intention, knowledge, recklessness or even negligence. In other words, it doesn’t matter whether you meant to break the rules or knew you were doing it”.
Why we use it - “Strict liability is imposed where the benefit to the community overrides any potential disadvantage to the person charged. In other words, where it’s in the public interest that you know what the rules are and take all reasonable steps to follow them.
That’s why it applies to most road rules, as well as a wide range of other laws involving public health, safety, the environment and financial or corporate regulation. It’s common in aviation too—almost every civil aviation rule in Australia is a strict liability offence.
You are still innocent until proven guilty
If you are charged with a strict liability offence, you aren’t automatically guilty.
It’s not up to you to prove your innocence but up to a prosecutor to prove that you have broken the rules and prove it beyond a reasonable doubt.”

 By way of background, the process of Part 138 amendment commenced in 2010. It belies reason that amidst a pandemic, an exceptionally difficult operational environment and period of uncertainty, that CASA has now seen fit to enter into a consultation period, 10 years in the making, allowing a five week window for Operators, under pressure to respond to regulatory information that has grown in excess its original size, without clarity or reason.

What is even more concerning is the apparent disregard by CASA, of the recommendations of the Technical Working Group, as reported from their most recent meeting on 12th march 2020? (extract below).
'Whist not endorsing the MOS, the TWG acknowledges that it will need to go out for public consultation for CASA to receive broader industry feedback. The TWG also noted that the risk of conducting public consultation with the MOS in its current form is that respondents may find the MOS too complex to understand.
The TWG recommended that the public consultation be structured in a way that will enable respondents to more easily provide feedback. It was also recommended that that the public consultation asks industry for feedback on aspects of the structure of the MOS'.
The Technical Working Group for Part 138, do not endorse the Manual of Standards that has now been published for consultation, yet CASA, despite looking to TWG’s for advice and guidance on industry specific issues, seems to have completely ignored their recommendations and pursuing its’ own objectives.

As stipulated in the Civil Aviation Act 1988, Section 9, one of CASA’s primary functions is to develop and promulgate appropriate, clear and concise aviation safety standards. Ignoring the well-informed Technical Working Group, engaging a consultation process on a cumbersome MOS that lacks clarity, and entering into a consultation period whilst Operators are already under pressure, does little to instil industry confidence or comply with a core legislative foundation.

Until we are able to map the regulations proposed and current which is a massive task when you do not have the resources such as CASA has and you are also continuing to manage business and family, no small operator is going to be able to manage to respond to this survey in the time you have given with sufficient detail or even understanding of what is proposed.

As a united force we also believe it should be stopped right now as reading through, and creating scenarios applicable to our operations under current CAR’s/CAO’s and tying them to proposed CASR’s/MOS’s we are finding major disparities that do not show any safety improvement outcomes, but do actually increase risk, and also creates unnecessary financial burdens.

CASA needs to return to Part 61 and fix that 1st, we have researched and found on the CASA website listing of instruments that have been implemented from the inception of Part 61 and obviously use to correct omissions and revisions to procedures, for airwork probably the most glaring is the need for a 141.035 approval to carry out mentoring training for new mustering pilots – which somehow missed being included in the initial Part 61 – the same also applies to AG training but so far no one has prepared an approval for that, but it also needs to be there.. we have additions of ratings / endorsements such as the fire rating which never existed in the past and in adding this in caused a massive problem with our fire fighting efforts around Australia in the past fire season, and if not removed and reverted back to pre Part 61 will continue to cause problems for those who have the skills and are needed on the front line.

https://www.casa.gov.au/standard-page/flight-crew-licensing-instruments

How can this many exemptions (not to mention the additional approvals 141.035 etc) that have been issued since Part 61 came into effect justify the continued effectivity of the Part 61 rule set. It would seem that those who prepared this were very lacking in experience in this area and also lack of consultation with those who know. We are dangerously heading down this path again with the push out of these other regulations prepared unskilled and inexperienced writers and overseer’s.

The new CASR’s 1998 were supposed tor remove the necessity for exemptions and approvals!!!

The CARS and CAO’s are easy to read and understand, albeit they do need, for the current climate to be tidied up a little in some areas but they are a solid foundation that everyone is able to understand and work with and are outcome based, they should be continued and expanded to suit todays aviation climate, the proposed CASR’s do not !! they are far to prescriptive and do not allow for growth and change in the industry.

Other countries (close neighbours)have managed to transition over in a very short period of time, for example CASA PNG managed this whole process in 2yrs after 1yr of writing and negotiations with NZ, with a small team of professionals and industry, for example their Part 61 Regulation is only 49 pages – outcome based and captures everything Australia’s Part 61 achieves in 5 volumes totaling 1874 pages (not including the MOS) – prescriptive legislation, NZ Part 61 is 99 pages outcome based.

CASA we remind you of your functions from the ACT (it would seem you are not following these):

CASA's functions:
(1) CASA has the function of conducting the safety regulation of the following, in accordance with this Act and the regulations:
(a) civil air operations in Australian territory;
(b) the operation of Australian aircraft outside Australian territory;
(ba) ANZA activities in New Zealand authorised by Australian AOCs with ANZA privileges;
by means that include the following:
(c) developing and promulgating appropriate, clear and concise aviation safety standards;
"aviation safety standards" means standards relating to the following:
(a) the flight crews engaged in operations of aircraft;
(b) the design, construction, maintenance, operation and use of aircraft and related
equipment;
(c) the planning, construction, establishment, operation and use of aerodromes;
(d) the establishment and use of airspace;
(e) the planning, construction, establishment, maintenance, operation and use of:
(i) services and facilities of the kind covered by paragraph 8(1)(a) of the Air Services
Act 1995 ; and
(iii) services of the kind referred to in paragraph 6(1)(b) of the Australian Maritime
Safety Authority Act 1990 to the extent that those services use aircraft;
and any construction associated with those facilities or services;
(f) the personnel engaged in:
(i) the maintenance of aircraft and related equipment; or
(ii) anything referred to in paragraph (c) or (e).
(d) developing effective enforcement strategies to secure compliance with aviation safety standards;
(da) administering Part IV (about drug and alcohol management plans and testing);
(e) issuing certificates, licences, registrations and permits;
(f) conducting comprehensive aviation industry surveillance, including assessment of safety-related decisions taken by industry management at all levels for their impact on aviation safety;
(g) conducting regular reviews of the system of civil aviation safety in order to monitor the safety performance of the aviation industry, to identify safety-related trends and risk factors and to promote the development and improvement of the system;
(h) conducting regular and timely assessment of international safety developments.
(2) CASA also has the following safety-related functions:
(a) encouraging a greater acceptance by the aviation industry of its obligation to maintain high standards of aviation safety, through:
(i) comprehensive safety education and training programs; and
(ii) accurate and timely aviation safety advice; and
(iii) fostering an awareness in industry management, and within the community generally, of the importance of aviation safety and compliance with relevant legislation;
(b) promoting full and effective consultation and communication with all interested parties on aviation safety issues.
(3) CASA also has the following functions:
(aa) implementing the ANZA mutual recognition agreements;
(a) cooperating with the Australian Transport Safety Bureau in relation to investigations under the Transport Safety Investigation Act 2003 that relate to aircraft;
(b) any functions conferred on CASA under the Civil Aviation (Carriers' Liability) Act 1959 , or under a corresponding law of a State or Territory;
(ba) enforcing the requirements of this Act and the regulations in relation to insurance and financial arrangements required under Part IVA of the Civil Aviation (Carriers' Liability) Act 1959 ;
(c) any functions conferred on CASA under the Air Navigation Act 1920 ;
(ca) entering into 83 bis agreements on behalf of Australia;
(cb) any functions conferred on CASA under the Aviation Transport Security Act 2004 ;
(cc) any functions conferred on CASA under the Airspace Act 2007 or under regulations under that Act;
(cd) any functions conferred on CASA under the International Interests in Mobile Equipment (Cape Town Convention) Act 2013 or rules made under that Act;
(d) any other functions prescribed by the regulations, being functions relating to any matters referred to in this section;
(e) promoting the development of Australia's civil aviation safety capabilities, skills and services, for the benefit of the Australian community and for export;
(f) providing consultancy and management services relating to any of the matters referred to in this section, both within and outside Australian territory;
(g) any functions incidental to any of the functions specified in this section.
(4) In performing the function under paragraph (3)(f), CASA may, under a contract with a foreign country or with an agency of a foreign country, provide services for that country or agency in relation to the regulation of the safety of air navigation or any other matter in which CASA has expertise. Those services may include conducting safety regulation in relation to foreign registered aircraft under the law of a foreign country.