RA-Aus organisational restructure

[dodo]

I need some professional assistance here. If the RAAus structure (as an incorporated association) is conditional on the approval of CASA, then Ive been laboring under a mis-conception. My understanding is that RAAus is an independent association which has been invited, and accepted by CASA, as the organisation set up to self regulate, via a deed of Agreement, Recreational Aviation in Australia. A task that CASA would prefer not to do and one which has been articulated in a Deed of Agreement. The mess we are in is about non-compliance, because our systems have not been adequate due to poor governance and management. We could bang on forever about the personalities involved in this saga but if structural change is not forthcoming soon, history will just repeat itself, if not already.Pete

Correct

 

 

[Guest Andys@coffs]

To a certain extent both are correct...... We are as Pete G says, yet by having a Deed of Agreement with CASA that has specific obligations we have elements of what Turbs is discussing.

 

The reality is though IMHO there is nothing in what CASA is requesting that is in anyway counter to the first. The handbooks that CASA produce are just that handbooks not (I think) called out as Terms and conditions in the agreement and as we all know a contract has to contain its entirety, nothing outside of the contract can affect the contract unless its envisaged as part of the terms

 

Andy

 

 

[turboplanner]

Andy the "handbooks" that CASA provides have their basis in legislation. That is the research which needs to be done to avoid a similar situation to where we now find someone was overridden in 2002 and a magical weight of 540 kg appeared.

 

 

[Guest Andys@coffs]

Then its the legislation that has to be followed not the handbooks.

 

Handbooks are an interpretation of legislation, "dummy's guide to RAO's"

 

 

[turboplanner]

That's correct, the VFG for example can trip you up from time to time

 

 

[Dafydd Llewellyn]

Once again, please excuse my ignorance, but CAO 95.55 exists by virtue of CAR 308(1) (That's what it says in the heading of the CAO):

 

308 Authority may grant exemptions

 

(1) CASA may, in relation to a particular aircraft or specified type or category of aircraft, do either or both of the following by instrument in writing:

 

(a) exempt that aircraft or aircraft of the specified type or category, as the case may be, from compliance with specified provisions of CAR;

 

(b) exempt persons from compliance with specified provisions of CAR while they are in, on, or otherwise associated with the operation of, that aircraft, or aircraft of the specified type or category, as the case may be.

 

The exemptions may be made subject to conditions:

 

(3) An exemption under subregulation (1) is subject to the aircraft or persons exempted complying with such conditions (if any) as CASA specifies in the instrument as being necessary in the interests of safety (having regard to those interests and the exemption concerned).

 

Both the exemptions and the conditions are specified in CAO 95.55; therefore, the regulatory aspects are, surely, in the public domain?

 

However, CASA gives RAAus a subsidy of $110K to perform the functions that follow from this - I would assume, matters such as maintaining a register of RAA aircraft, issuing pilot certificates, setting standards for pilot training, aircraft maintenance etc, issuing maintenance authorities and keeping track of the holders, and so on. I would assume that the deed of agreement relates to these services supplied by RAAus, for which CASA supplies the subsidy. Therefore, the Deed of Agreement presumably constitutes some sort of contract between CASA and RAA that defines what CASA expects RAA to do in return for the subsidy.

 

Therefore, if there are specific requirements from CASA as to the RAA structure, over and above what is required by the ACT rules for non-profit associations, they can only be in relation to the subsidy. CASA can, if it wishes, presumably require the RAA filing cabinets to be purple with pink polka-dots if it wants to, as a condition of the subsidy. RAAus not complying with the terms of the agreement that are a condition for the subsidy are therefore quite a different issue to non-compliance with the CARs.

 

Or so it would seem to me. Is my understanding correct?

 

 

[dodo]

I imagine that is legally correct. However, in my experience dealing with government organisations like CASA, they often think the rest of the world is motivated by money, while they are purely interested in their higher goal. They then sometimes take a view that influencing one arrangement (the CAR & CAO responsibilities) with another arrangement (the contractual), is a an effective way of "influencing change" in a pure and idealistic manner.

 

However, as you have pointed out previously, RA needs CASA's confidence to continue to be allowed to register aircraft, which is probably dependant on the Deed (I assume this, as the Deed is not available to us as it is commercial in confidence...which implies some commercial confidences...between a government owned regulator and a not for profit!? What commercial confidences???!!!??!)

 

At which point, I am back to my usual position of asking why everything has to be secret...

 

dodo

 

 

[Pete Greed]

Once again, please excuse my ignorance, but CAO 95.55 exists by virtue of CAR 308(1) (That's what it says in the heading of the CAO):308 Authority may grant exemptions

(1) CASA may, in relation to a particular aircraft or specified type or category of aircraft, do either or both of the following by instrument in writing:

 

(a) exempt that aircraft or aircraft of the specified type or category, as the case may be, from compliance with specified provisions of CAR;

 

(b) exempt persons from compliance with specified provisions of CAR while they are in, on, or otherwise associated with the operation of, that aircraft, or aircraft of the specified type or category, as the case may be.

 

The exemptions may be made subject to conditions:

 

(3) An exemption under subregulation (1) is subject to the aircraft or persons exempted complying with such conditions (if any) as CASA specifies in the instrument as being necessary in the interests of safety (having regard to those interests and the exemption concerned).

 

Both the exemptions and the conditions are specified in CAO 95.55; therefore, the regulatory aspects are, surely, in the public domain?

 

However, CASA gives RAAus a subsidy of $110K to perform the functions that follow from this - I would assume, matters such as maintaining a register of RAA aircraft, issuing pilot certificates, setting standards for pilot training, aircraft maintenance etc, issuing maintenance authorities and keeping track of the holders, and so on. I would assume that the deed of agreement relates to these services supplied by RAAus, for which CASA supplies the subsidy. Therefore, the Deed of Agreement presumably constitutes some sort of contract between CASA and RAA that defines what CASA expects RAA to do in return for the subsidy.

 

Therefore, if there are specific requirements from CASA as to the RAA structure, over and above what is required by the ACT rules for non-profit associations, they can only be in relation to the subsidy. CASA can, if it wishes, presumably require the RAA filing cabinets to be purple with pink polka-dots if it wants to, as a condition of the subsidy. RAAus not complying with the terms of the agreement that are a condition for the subsidy are therefore quite a different issue to non-compliance with the CARs.

 

Or so it would seem to me. Is my understanding correct?

Dafydd: Another way of looking at a "subsidy" is to see it as an administrative fee paid to RAAus by CASA to enact the regulations. This would I think better reflect the relationship between RAAus and CASA where a balance can be struck between the technical development of the rules and regulations and the strategic direction we would see the recreation aviation movement going.

 

To me a subsidy is something that is given, an administrative fee is negotiated. And from a casual glance that fee would appear to be a bit light on. Partnerships with government tend not to be equitable.

 

Pete

 

 

[Dafydd Llewellyn]

Dafydd: Another way of looking at a "subsidy" is to see it as an administrative fee paid to RAAus by CASA to enact the regulations. This would I think better reflect the relationship between RAAus and CASA where a balance can be struck between the technical development of the rules and regulations and the strategic direction we would see the recreation aviation movement going.To me a subsidy is something that is given, an administrative fee is negotiated. And from a casual glance that fee would appear to be a bit light on. Partnerships with government tend not to be equitable.

Pete

Well, the reason I ask - and you have not in fact answered my question - is because CAR 308(1) refers to an "instrument in writing" - and CAR 308 goes on to say:

 

(4) An instrument under subregulation (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

 

So, if the Deed of Agreement in any way constitutes part of the conditions for the exemption, it constitutes an instrument in writing, which is by definition a Disallowable Instrument; and as such, it should appear in the Register of Disallowable Instruments (I would assume, the ACT part of the Register) - i.e. it is in the public domain.

 

So, either it is NOT a confidential document, OR it cannot specify further conditions for the exemptions under which RAAus operates. It cannot be both.

 

 

[Pete Greed]

Well, the reason I ask - and you have not in fact answered my question - is because CAR 308(1) refers to an "instrument in writing" - and CAR 308 goes on to say:(4) An instrument under subregulation (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

 

So, if the Deed of Agreement in any way constitutes part of the conditions for the exemption, it constitutes an instrument in writing, which is by definition a Disallowable Instrument; and as such, it should appear in the Register of Disallowable Instruments (I would assume, the ACT part of the Register) - i.e. it is in the public domain.

 

So, either it is NOT a confidential document, OR it cannot specify further conditions for the exemptions under which RAAus operates. It cannot be both.

Dafydd: You may in fact be making a valid point (that needs the attention of the board). However at this time the re-structuring of our governance and management systems is the critical issue.

 

Pete

 

 

[Dafydd Llewellyn]

Dafydd: You may in fact be making a valid point (that needs the attention of the board). However at this time the re-structuring of our governance and management systems is the critical issue.Pete

I merely ask, because if you want any more suggestions via this thread, obviously you won't get them whilst people remain in ignorance of the content of the deed. If you are content with that, just say so and I for one will shut up.

 

 

[AlfaRomeo]

A Deed is usually used to avoid reference to the Law of Contract. In a contract, at its simplest level, somebody does something and earns a quid pro quo for doing it. Countless thousands of pages have been written on the Law of Contract and we are not going into that here especially as we are talking about a Deed not a Contract.

 

So, under the Deed of Agreement, obligations are created for CASA and for RA-Aus. Simple enough. CASA does not want it to be a Contract or it would be a contract. CASA does not want to be seen to be paying RA-Aus for services rendered. It wants to give some money to RA-Aus to assist with Administration costs but sees it as an opportunity to get something for the gift.

 

The Deed is not confidential from any member of RA-Aus who merely has to go to Fyshwick and ask to see the document at a time convenient to the office. You may not be allowed to copy or publish what you see but see it you can.

 

 

[Oscar]

The Deed is not confidential from any member of RA-Aus who merely has to go to Fyshwick and ask to see the document at a time convenient to the office. You may not be allowed to copy or publish what you see but see it you can.

I am still completely at a loss to understand the rationale behind the restriction of general access by members to this document. Fine - so as a member, IF you go to RAA HQ you can at least verify to yourself that it does, indeed, exist - but you cannot obtain a copy nor promulgate its contents?

 

Surely the entire basis of RAA's existence lies in two basic documents: its Constitution, by which we as members can evaluate the performance of and conformity with rules relating to Governance by the Board, and the Deed of Agreement, by reference to which members can judge the same metrics for conformity with the requirements placed on the organisation in respect of the exemptions under which it manages the operation of aircraft.

 

That the performance of its obligations under the Deed has been lamentably inadequate is entirely obvious. Aircraft owners waking up one morning to find their aircraft cannot be re-registered, that it is is no longer to all intents and purposes a two-seat aircraft, or that it is grounded immediately with no solution to that situation even in sight - these facts are incontrovertible. Members rather suddenly discovering that relations with CASA have suddenly become strained to the point of (apparently) guns being placed at the heads of management in order to achieve progress on matters that have been subject to a rising level of angst by CASA over a considerable period of time is at the very least, extremely disconcerting.

 

How, in ignorance of the terms of the Deed of Agreement due to the lack of access to this document, have members been expected to be able to monitor the performance of RAA management, much less apply pressure to have obvious inadequacies in that performance corrected? I accept that most members simply want to be able to continue flying and as long as that happens, aren't interested in the details - but in the absence of knowledge of those details we have all been placed in a situation where we had to accept what was, effectively, a 'Trust us' situation by the Board - as late as February of this year.

 

 

[Dafydd Llewellyn]

A Deed is usually used to avoid reference to the Law of Contract. In a contract, at its simplest level, somebody does something and earns a quid pro quo for doing it. Countless thousands of pages have been written on the Law of Contract and we are not going into that here especially as we are talking about a Deed not a Contract.So, under the Deed of Agreement, obligations are created for CASA and for RA-Aus. Simple enough. CASA does not want it to be a Contract or it would be a contract. CASA does not want to be seen to be paying RA-Aus for services rendered. It wants to give some money to RA-Aus to assist with Administration costs but sees it as an opportunity to get something for the gift.

 

The Deed is not confidential from any member of RA-Aus who merely has to go to Fyshwick and ask to see the document at a time convenient to the office. You may not be allowed to copy or publish what you see but see it you can.

Sounds like "The hitch-hiker's Guide to the Galaxy" . . .

 

 

[Pete Greed]

I am still completely at a loss to understand the rationale behind the restriction of general access by members to this document. Fine - so as a member, IF you go to RAA HQ you can at least verify to yourself that it does, indeed, exist - but you cannot obtain a copy nor promulgate its contents?Surely the entire basis of RAA's existence lies in two basic documents: its Constitution, by which we as members can evaluate the performance of and conformity with rules relating to Governance by the Board, and the Deed of Agreement, by reference to which members can judge the same metrics for conformity with the requirements placed on the organisation in respect of the exemptions under which it manages the operation of aircraft.

 

That the performance of its obligations under the Deed has been lamentably inadequate is entirely obvious. Aircraft owners waking up one morning to find their aircraft cannot be re-registered, that it is is no longer to all intents and purposes a two-seat aircraft, or that it is grounded immediately with no solution to that situation even in sight - these facts are incontrovertible. Members rather suddenly discovering that relations with CASA have suddenly become strained to the point of (apparently) guns being placed at the heads of management in order to achieve progress on matters that have been subject to a rising level of angst by CASA over a considerable period of time is at the very least, extremely disconcerting.

 

How, in ignorance of the terms of the Deed of Agreement due to the lack of access to this document, have members been expected to be able to monitor the performance of RAA management, much less apply pressure to have obvious inadequacies in that performance corrected? I accept that most members simply want to be able to continue flying and as long as that happens, aren't interested in the details - but in the absence of knowledge of those details we have all been placed in a situation where we had to accept what was, effectively, a 'Trust us' situation by the Board - as late as February of this year.

Oscar: your understanding that we operate with a constitution and a negotiated Deed of Agreement between RAAus and CASA, is the same as mine. What seems to be in dispute is "what was negotiated in terms of the relationship between the two bodies"? From the posting on this forum it would appear that contrary to good governance the Executive of RAAus has been listed as the contact/decision makers for the Deed of Agreement, as opposed to the Board. That could of course be corrected if it is deemed to be the problem.

 

Pete

 

 

[Oscar]

From the posting on this forum it would appear that contrary to good governance the Executive of RAAus has been listed as the contact/decision makers for the Deed of Agreement, as opposed to the Board. That could of course be corrected if it is deemed to be the problem.

Pete - I think we are getting to the nub of this. However, one should not intermingle the question of 'good governance' with the question of whether 'the Executive' is the NOMINATED agent of action for the Deed of Agreement - it's not CASA's role to tell us how RAA is to be governed, merely to state the requirements it has for allowing RAA to exercise the exemptions. ( However, one of course has to recognise that the Deed of Agreement utilised the structure of RAA with which it had to work, there's somewhat of a Catch-22 situation there, I think, and certainly CASA would not have accepted anything that was palpably illogical).

 

To me, it still appears that if we do not HAVE an Executive to be 'the Executive', then the terms of the Deed of Agreement cannot be met: there is NO 'agent of action' to keep compliance with the Deed (unless there is some form of recognition of an alternative responsible 'agent' in the Deed. If Ed Herring carries out his resignation threat, RAA does not HAVE either a President or a Treasurer as of then - i.e. two out of three persons stipulated to form 'the Executive' are not available! If there is a clause in either the Deed or the Constitution that allows a substitute person/s ( e.g. the G.M. under certain circumstances), then we are still ok, I think - if somewhat under the hammer. However, if there is no escape clause/s, then I am very uncertain as to how CASA can accept a non-complying organisation as able to meet its obligations.

 

 

[turboplanner]

Oscar, as much as several of us have tried to explain that your understanding is way wide of the mark. You certainly cannot add constitution and deed and come up with what you have then add an imaginary "executive" link as an imperative, there are more links and documents involved which I've also explained to Pete. The End is Not Nigh

 

 

[DWF]

The RA-Aus constitution says:

 

"12. Constitution and membership of the Board.

 

(iii) The Members of the Board, will elect, at the beginning of the Annual Board meeting,

 

presided over by the Public Officer, the Members of the Executive, from within the Board."

 

Unfortunately it (the constitution) does not specifically cover the situation where a member of the Executive resigns his/her office but remains on the Board. However, precedent and common sense (a somewhat rare commodity) would indicate that the same process would be followed to elect a replacement member(s) of the Executive from within the remaining Board members. The problem may be getting someone else to nominate.

 

The Model Rules in the Act are silent on this issue.

 

So, if one (or more) members of the Executive resigns the office but remains on the Board the vacancy should be resolved at the next Board meeting (which should be held asap and may be held electronically) where an election for the office would be presided over by the Public Officer.

 

Where there is a will there is a way.

 

I don't think the sky is falling in just yet.

 

DWF

 

 

[turboplanner]

DWF, you put your finger on one of the indicators that the "Executive" positions were inserted long ago by a small power clique, perhaps without the required Constitutional vote.

 

One of the other indicators is abscence of their power clauses and a few other things.

 

 

[Oscar]

Oscar, as much as several of us have tried to explain that your understanding is way wide of the mark. You certainly cannot add constitution and deed and come up with what you have then add an imaginary "executive" link as an imperative, there are more links and documents involved which I've also explained to Pete. The End is Not Nigh

Well, that is indeed grand news and I bow to your superior knowledge, secure in the understanding that all will be well.

 

 

[turboplanner]

As I've mentioned, you could confirm this with a few days of hitting the Net.

 

 

[Oscar]

Forgive me my old habits, but I was trained to seek source documents for the formation of my knowledge. I have been unable to find a copy of the Deed of Agreement - can you provide a link?

 

 

[turboplanner]

Someone else provided that information in the last day or so. You can go and view it in the office as a member, or you can FoI it.

 

I think after all that effort you'll be disappointed in what you see other than recognising a very clever document.

 

For the details, which you seem to be wanting, you have to search the manuals, as someone else has already said, and the base documents.

 

If, as you say you've been trained to seek source documents, this will be a breeze, because the CASA system is very extensive.

 

 

[Oscar]

Well, you haven't really answered my query. The manuals - and the regulations etc. - state what HAS to be done, don't they? What I seek is concrete information as to WHO, in RAA, is responsible to CASA under the terms of the Deed of Agreement for executing the CASA requirements. I presume you have knowledge of this - so can you please share it? Having dealt with FOI requests in my career, I am rather well aware of the time it takes to extract the sought information, and as for many members, the RAA HQ is not on my doorstep. And, I am certainly competent to seek copies of documentation from the CASA web-site, but I'm not about to waste time in extracting generic information that requires nominated persons to execute the requirement when that information is - apparently - unavailable via the 'net.

 

If the Deed of Agreement does not specify nominated positions as responsible for performing the executive functions of the Deed, then I have absolutely been barking up the wrong tree. I would be extremely relieved to find this is the case. I seek you assistance in discovering that information.

 

 

[Pete Greed]

Pete - I think we are getting to the nub of this. However, one should not intermingle the question of 'good governance' with the question of whether 'the Executive' is the NOMINATED agent of action for the Deed of Agreement - it's not CASA's role to tell us how RAA is to be governed, merely to state the requirements it has for allowing RAA to exercise the exemptions. ( However, one of course has to recognise that the Deed of Agreement utilised the structure of RAA with which it had to work, there's somewhat of a Catch-22 situation there, I think, and certainly CASA would not have accepted anything that was palpably illogical).Hit the nail on the head Oscar. "It is not CASA's role to tell us how RAAus is to be governed"

 

For starters the development of an annual Deed of Agreement needs to be consistent with the RAAus Boards responsibilities and fiduciary duties under the RAAus constitution. This could be simply achieved by RAAus appointing an expert sub-committee (and there appears to be plenty of talent on this forum) to shape, with the Board, the technical relationship between RAAus and CASA. The Deed, jointly acknowledged by RAAus and CASA, would replace, what appears to be a pseudo "management" arrangement, currently recognised by CASA in the form of the RAAus Executive. An unconstitutional, governance and management, mess.

 

With a sub-committee providing policy advice to the RAAus Board, professional RAAus staff managing and delivering the service, and CASA declaring and monitoring regulations, Recreational Aviation in Australia could have the best of both worlds - community based strategic thinking shaping the future of recreational aviation, while contributing to what are essential and necessary government regulations.

 

In retrospect its easy to be hard on our previous RAAus administration. Unfortunately it did not keep pace with the growth of the sector and it, and we have, suffered accordingly.

 

Pete