Response 797379253

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2. Last name

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Newton

5. If yes, please specify the name of your organisation.

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N/A

Carriage of documents

1. This proposal introduces new journey log requirements for international flights. (section 3.01 and 3.02 of the Part 91 MOS)

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yes
some change/s required (please specify below)
Ticked no (please specify below)
not applicable
Comments
This regulation is unduly prescriptive. For operators who frequently carry out international flights, the requirements of this regulation are better addressed via the documentation CASA requires for the issuance of an AOC. In particular, the regulation is treading on territory better covered by the operator's Compliance Statement, Fuel Policy, Nomination of Operational Personnel, and Safety Management System documents. To the extent that it hasn't been already, points addressed by this proposed regulation should be dealt with by amending the CASA AOC Handbook. For operators who rarely carry out international flights (e.g., Part 91 operators flying around the world, between Australia and New Zealand, and between Australia and Papua New Guinea), this regulation amounts to a prescriptive list of paperwork which must be filled out even though nobody will ever want to read it. Ordinary flight planning considerations will result in the operator evaluating the pre-flight and post-flight points addressed by this regulation, and there's no additional value in requiring them to be replicated in a formal journey log.

2. This proposal explicitly permits the carriage of documents electronically. (regulation 91.113 of CASR)

Please select one item
Ticked yes
some change/s required (please specify below)
no (please specify below)
not applicable

Firearms

1. This proposal removes the need for CASA approval for someone to carry firearms on aircraft - for flights not regulated for this purpose under the Aviation Transport Security Act 2004. (regulation 91.130 of CASR)

Please select one item
yes
Ticked some change/s required (please specify below)
no (please specify below)
not applicable
Comments
The attempt to rewrite the regulation has resulted in drafting inconsistency which makes it more difficult to understand by unnecessarily mixing negatives and double-negatives in consecutive clauses. The new regulation would be better expressed as: (1) A person contravenes this subregulation if the person carries or otherwise possesses a firearm on an aircraft. (2) Subregulation (1) does not apply if the aircraft is a prescribed aircraft within the meaning of the Aviation Transport Security Act 2004. (3) Subregulation (1) does not apply if the operator or pilot in command of the aircraft has consented, in writing, to the person carrying or otherwise possessing the firearm on the aircraft. (4) Subregulation (1) does not apply if the person is authorised (however described) under another provision of these Regulations or another law of the Commonwealth to carry or otherwise possess the firearm on the aircraft. A person should bear an evidential burden in relation to any exception clauses (2)-(4). As currently drafted, the regulation omits the regulatory burden of proving that an aircraft is a prescribed aircraft, even though that's an element of the offence. A safety case should be constructed to explain why contravention of this regulation needs to be an offence of strict liability.

Crew members

1. This proposal creates a broader requirement for fitness for duty and removes the prescriptive eight-hour rule for alcohol consumption. (regulation 91.215 of CASR)

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yes
some change/s required (please specify below)
Ticked no (please specify below)
not applicable
Comments
It is unconscionable to enact a regulation which imposes a strict liability criminal penalty on criteria as subjective as "fatigued to the extent that the crew member's ability to safely perform the duty is reduced or likely to be reduced." It is impossible to objectively measure that criteria, and even more impossible to test for it after the fact. This is the precise kind of regulation that causes the GA community to criticise CASA for imposition of strict liability: Whether or not the offence has occurred becomes a simple matter of assertion by an accuser, unchallengeable by its target. The defendant testifies, "I wasn't fatigued." Now what? What is a court or tribunal supposed to do with that? Is it even remotely possible to attain an outcome that causes justice to be seen to be done after that testimony is delivered? This regulation should not prescribe a strict liability offence unless and until it can be redrafted with objective physical elements. Note also that the decision to make CASR violations criminal offences is a mere policy decision taken by CASA, and is not required by the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (ref: paragraph 2.1, https://www.ag.gov.au/Publications/Documents/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers/A%20Guide%20to%20Framing%20Cth%20Offences.pdf): "Other mechanisms include infringement notices, civil penalties, enforceable undertakings and administrative sanctions, such as licence cancellation. In many instances, these penalties can be as effective, or more effective, in deterring and punishing breaches of legislation."

2. This proposal broadens the requirement for cabin crew, to include non-air transport flights carrying 20 or more passengers. (regulation 91.1460 of CASR)

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Ticked yes
some change/s required (please specify below)
no (please specify below)
not applicable

3. This proposal broadens the requirement for passengers to comply with cabin crew safety instructions. (regulation 91.790 of CASR)

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yes
Ticked some change/s required (please specify below)
no (please specify below)
not applicable
Comments
A safety case should be constructed to justify the strict liability provisions of this regulation, particularly in relation to passengers who understand more about the situation at hand than the cabin crew member giving the instruction. For example: Two weeks ago, a United Airlines cabin crew member gave an enforceable instruction to a passenger which resulted in the unnecessary suffocation to death of their dog. Should the passenger have faced a fine in excess of $9000 attached to a strict liability offence if they refused the cabin crew member's demand?

Portable Electronic Devices (PEDs)

1. This proposal removes the prescriptive list of permitted portable electronic devices (PEDs) on flights. (regulation 91.145 of CASR)

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Ticked yes
some change/s required (please specify below)
no (please specify below)
not applicable

2. This proposal restricts crew members from operating PEDs where that would be distracting to the performance of their duties. (regulation 91.150 of CASR)

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yes
some change/s required (please specify below)
Ticked no (please specify below)
not applicable
Comments
This requirement is better addressed by the SMS attached to the operator's AOC, and does not need to be stipulated with a strict liability offence provision in Part 91.

Equipment

1. This proposal relaxes oxygen requirements for non-air transport operations. (Division 30.9 of the Part 91 MOS)

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Ticked yes
some change/s required (please specify below)
no (please specify below)
not applicable
Comments
This is a welcome change: Australia's 10,000' limit in CAO 20.4 para 6.1 has been out of step with our international peers and aeromedical evidence for a very long time.

2. This proposal expands a requirement to preserve flight recordings (and recorders) after an immediately reportable matter while reducing the amount of time these need to be retained. (regulation 91.724 of CASR)

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Ticked yes
some change/s required (please specify below)
no (please specify below)
not applicable

3. This proposal consolidates all the rules for the Minimum Equipment List (MEL) in one place and expands who can approve the MEL. (regulation 91.1680 to 91.1705 of CASR and sections 33.01 to 33.09 of the Part 91 MOS)

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yes
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no (please specify below)
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Comments
For many decades, the MEL regulations have been confusing in their application to aircraft without a type certificate. For example, under the current definition, it is not possible for an Experimental/Amateur-Built aircraft to have an MMEL (because the MMEL definition stipulates that MMELs must be prepared by the holder of the aircraft's type certificate, and E/AB aircraft don't have type certificates). It would be disappointing if Part 91 was rewritten, and the new version continued that confusion. A clarifying statement in 33.01 which indicates that none of the provisions of 33.02-33.09 apply to E/AB aircraft would be a useful addition which approximately preserves the status quo.

Take-off and landing

1. This proposal introduces an approach ban for Instrument Flight Rules (IFR) flights under certain circumstances. (section 17.07 of the Part 91 MOS)

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yes
some change/s required (please specify below)
Ticked no (please specify below)
not applicable
Comments
If an airport has a published approach, it should be acceptable for a pilot in command to fly the approach to minimums. If the RVR is less than the specified minima for landing, the pilot in command can and should execute a missed approach. There is no safety case for saying that it's perfectly fine to carry out an approach to minimums through a cloud deck whose base is 100' AGL, but a regulatory breach to carry out the same approach if the same cloud deck extends to ground level in the touchdown zone. In both cases, the pilot would not acquire visual contact with the runway environment before minimums, and will go missed. Safety is assured, there is no reason to complicate matters with this regulation.

2. This proposal changes the existing low visibility take off and approach exemptions to an approval. (regulation 91.425 of CASR)

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yes
Ticked some change/s required (please specify below)
no (please specify below)
not applicable
Comments
A safety case needs to be formulated to support this. Zero-zero takeoffs are legal for IFR without additional approvals under FAA Part 91. They're recognized by the pilot community as risky, but can be (and routinely are) carried out safely. Alternatives to an offence provision should be considered, such as enhancing the IFR training syllabus to include zero-zero takeoffs, and publishing guidance material about risks and issues.

Flight requirements

1. This proposal extends the ability for pilots not operating under an AOC or other certificate to use night vision imaging systems (NVIS) under certain conditions. (section 5.02 of the Part 91 MOS )

Please select one item
Ticked yes
some change/s required (please specify below)
no (please specify below)
not applicable

2. This proposal introduces the ability for night Visual Flight Rules (VFR) flights to use IFR lowest safe altitudes. (regulation 91.395 of CASR)

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Ticked yes
some change/s required (please specify below)
no (please specify below)
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Comments
This has been a long time coming, and appears consistent with my NVFR training.

3. This proposal introduces a requirement to comply with Air Defence Identification Zones (ADIZ) procedures. (regulation 91.362 of CASR)

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yes
Ticked some change/s required (please specify below)
no (please specify below)
not applicable
Comments
Recent experiences in relation to the ADIZ for the ASEAN18 conference in Sydney indicate that further rules need to be added regarding publication of ADIZs. I don't believe an ADIZ should be legally enforceable unless CASA, Air Services, or the ADF have taken reasonable steps to ensure that the pilot community is aware of its existence. The ASEAN18 ADIZ was severely mishandled. It was published in an AIP/SUP (which almost no VFR pilots subscribe to, or are required to subscribe to). The NOTAM which activated it was published as a YMMM Melbourne Head Office NOTAM, buried away in hundreds of other NOTAMs about runway length variations in Perth, oceanic restricted areas on the way to New Zealand, and fireworks displays in Melbourne. The NOTAM should have been published as an Area 21 (and perhaps Area 20) NOTAM, and also as a YSCN, YSBK, YSSY NOTAM at the very least; and should have been published well in advance of the ADIZ's existence. It is wholly unreasonable to attach a 50 penalty unit strict liability offence to a pilot who flies into an ADIZ whose existence has been so hopelessly obscured that it's almost impossible for a pilot who has obtained a NAIPS area briefing and enroute briefing to be aware of it. CASA, Air Services, and ADF failed in this instance, and must do better if they're going to expect pilots to be liable for ADIZ-related offences.

4. This proposal creates a requirement to comply with aircraft interception procedures. (section 20.05 of the Part 91 MOS)

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Ticked yes
some change/s required (please specify below)
no (please specify below)
not applicable

5. This proposal reduces the altitude above which a VFR aircraft must (where practicable) use VFR cruising levels from 5000 ft to 3000 ft AMSL (above mean sea level). (section 13.04 of the Part 91 MOS)

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yes
some change/s required (please specify below)
Ticked no (please specify below)
not applicable
Comments
The 5000' guidance for compliance with hemispherical cruising altitudes in Australia is a climactic artifact. Where cloud is present under prevailing Australian climactic conditions during autumn and winter, it's usually in the 4000'-5000' region. Unambiguous application of pilot discretion regarding cruising levels below 5000' enables a VFR pilot to remain in VMC from SFC-4000' (allowing for a 1000' cloud clearance requirement). Lowering the 5000' figure to 3000' reduces that buffer, or places pilots in an uncomfortable position where they're relying on a subjective and nebulous "as practicable" caveat in the regulation. The controllers who are issuing level clearances to IFR flight are also typically unaware of cloud height. I don't believe this regulation is necessary. I think it's harmful, when contrasted against the status quo.

Animals

1. This proposal significantly simplifies the rules for the carriage of animals in the aircraft cabin. (regulation 91.200 of CASR)

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Ticked yes
some change/s required (please specify below)
no (please specify below)
not applicable

Emergency simulation restrictions

1. This proposal restricts the simulation of certain emergencies, predominantly, in Instrument Meteorological Conditions (IMC) or at night. (regulation 91.570 to 91.610 of CASR)

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yes
Ticked some change/s required (please specify below)
no (please specify below)
not applicable

Your priorities

1. When you reflect on the feedback you have provided throughout this consultation, what are the three matters you consider most important?

Priority 1
Don't be prescriptive.
Priority 2
Reform the application of criminal offences and strict liability
Priority 3
Harmonization with FAA.