Proposed Part 149 Organisations - recipe for tyranny?

[Jim McDowall]

You have to introduce a bit of pragmatism into this. 3rd party insurance is compulsory with road vehicles, and there are victims of crime paymentsYou can't get money from a bankrupt but innocent parties have to be protected. somehow and insurance is one way to cover that

. Sometimes a structure that appears to lack certain sophisticated modelling works well because the members WANT it to work. No design for a management of members interests will ever be perfect as all possible problems cannot be anticipated in advance either. Nev

Dont have a problem with third party insurance so long as the injured parties (including their relatives) are not in my aircraft - anyone who gets into a recreational aircraft is presumed to understand the risks - see the various court cases.

 

 

[facthunter]

And some of them haven't worked out too well have they?. I get the thrust of your argument, but I think you are saying what should apply not what may apply. You can take your best mate along but his widow may have other views about the situation and want some of your money. Nev

 

 

[Jim McDowall]

Easy fix, shut down CASA, and operate the private aviation segments as fully self administering bodies reporting direct to the Department.Major reason against that is the unruly content on social media over the past decade. indicating the sports are not responsible enough, and the Department could have a contingent liability.

Works fine in other sports.

What do you mean "Major reason against that is the unruly content on social media over the past decade"? Debate is part of the democratic process and CASA is part of the system - public servants are fully aware that they will become from time to time the target of criticism, deserved or otherwise, just ask the planner at your local council.

The purpose of debate such as the discussion we are having here is to test ideas. If the guys with Wheeler Scouts didn't throw around ideas that eventually formed into a campaign that resulted in 95.10 we wouldn't have the recreational aviation we have today. Remember they didn't have internet forums so we aren't aware of individual discussions.

 

I agree forums can sometimes be haunted by disaffected souls who can only see the negative and take pots shots at those trying to evolve ideas but similarly some pretty impressive results have been the result of discussions on forums like this one.

 

 

[Jim McDowall]

And some of them haven't worked out too well have they?. I get the thrust of your argument, but I think you are saying what should apply not what may apply. You can take your best mate along but his widow may have other views about the situation and want some of your money. Nev

Thats my point - the widows and orphans should not have standing in the same way as if I drown at the beach or go base jumping. New Zealand has laws to prevent operators of "bungee jumpers" and other extreme activities being sued. As a lobby we could ask the Government to legislate.

 

 

[turboplanner]

Dont have a problem with third party insurance so long as the injured parties (including their relatives) are not in my aircraft - anyone who gets into a recreational aircraft is presumed to understand the risks - see the various court cases.

I think it's doubtful that governments would go for third party schemes for sports or recreation, but if they did the premium would be a fraction of the current $2,000.00 or so premium needed to cover yourself.

 

 

[Jim McDowall]

I think it's doubtful that governments would go for third party schemes for sports or recreation, but if they did the premium would be a fraction of the current $2,000.00 or so premium needed to cover yourself.

But they could legislate to limit claims - airlines are already limited by treaty (and thus legislation)

 

 

[turboplanner]

The went the other way in the 1980's to save taxpayers' money, they've kept going further in that direction, and the system has been working very well. Costs are being paid by the careless, si I doubt that there would be a 180 turn for one tiny recreational sector.

 

 

[Jim McDowall]

The went the other way in the 1980's to save taxpayers' money, they've kept going further in that direction, and the system has been working very well. Costs are being paid by the careless, si I doubt that there would be a 180 turn for one tiny recreational sector.

Limiting claims lowers cost. Insurance is not paid by government - I dont get your point.

 

 

[turboplanner]

Limiting claims lowers cost. Insurance is not paid by government - I dont get your point.

Before the 1980's the government used to license and regulate many things, and where there was negligence the taxpayer paid.

 

An example was Victoria's Department of Labour and Industry which was responsible for inspecting all cranes, chains and equipment, and issuing Certificates if they passed their tests.

 

The DLI was closed down, and operators are now responsible for their own safety.

 

If someone is injured, they sue the operator for negligence.

 

These days:

 

The government isn't involved in the activity, so it's not going to be sued = massive saving A

 

The government doesn't have to track down every little factory, and check measurements and specifications = massive saving B

 

And in answer to your post #28 about my unruly content in Post #24, you realise that we have totally departed from the succinct information which I posted, and insurance has nothing to do with it.

 

 

[Jim McDowall]

So if CASA delegates to a private party it escapes the potential for liability if it is not negligent + massive saving A+B

 

This is the case with GA with delegations to issue authorisations for maintenance, experimental certificates, flight reviews etc.

 

When CASA starts being actively involved in the activities is when it starts having problems. Have a look at the court cases in relation to a gliding accident at Goulburn. CASA escaped scot free. In contrast the coroner was dismissive of the GFA culture in a recent hearing into a fatality at Goulburn.

 

 

[turboplanner]

So if CASA delegates to a private party it escapes the potential for liability if it is not negligent + massive saving A+BThis is the case with GA with delegations to issue authorisations for maintenance, experimental certificates, flight reviews etc.

When CASA starts being actively involved in the activities is when it starts having problems. Have a look at the court cases in relation to a gliding accident at Goulburn. CASA escaped scot free. In contrast the coroner was dismissive of the GFA culture in a recent hearing into a fatality at Goulburn.

CASA is not the Government:

 

"The Civil Aviation Safety Authority (CASA) was established on 6 July 1995 as an independent statutory authority. Under section 8 of the, Civil Aviation Act 1988, CASA is a body corporate separate from the Commonwealth."

 

When government sets up these independent authorities, and those authorities start making up rules, which previously had to go through the scrutiny of two houses of Parliament, they can sometime re-assume risk via the authority, it's usually an unfair, ad hoc system.

 

If you were the Minister and went along to the Sporting Shooters Association, and said "Hey, guys, we were thinking about setting up the "Sporting Shooters Safety Authority" to make up rules for you, prosecute you when you broke the rules we made up, tell you where you can and can't shoot, what specifications are legal and what are illegal (which we will decide ourselves over a cup of coffee each Monday), he would be laughed out of the office.

 

What I was suggesting in post #24 was:

 

Close down CASA and re-institute a Department of Civil Aviation (or an aviation section of DIRD), which would then free up several Incorporated Associations to self administer their specialties, more or less what the Sporting Shooters Association of Australia have today.

 

 

[facthunter]

You would certainly be better off with a Dept of Aviation I'm not sure about only civil. They both use the same airspace and maybe more airspace could be freed up.

 

Aviation is a bit different from other transport . There is no interaction between it and the other forms that have useful things like brakes and anchors to make more time available to you, and it is up in the sky, on invisible highways with nothing but a dynamic reaction with air to keep you there.( Unless you are in a balloon.) Up there, there are no rescue vessels or tow trucks . No pulling over and checking the motors...Nev

 

 

[Jim McDowall]

CASA is not the Government:"The Civil Aviation Safety Authority (CASA) was established on 6 July 1995 as an independent statutory authority. Under section 8 of the, Civil Aviation Act 1988, CASA is a body corporate separate from the Commonwealth."

When government sets up these independent authorities, and those authorities start making up rules, which previously had to go through the scrutiny of two houses of Parliament, they can sometime re-assume risk via the authority, it's usually an unfair, ad hoc system.

 

If you were the Minister and went along to the Sporting Shooters Association, and said "Hey, guys, we were thinking about setting up the "Sporting Shooters Safety Authority" to make up rules for you, prosecute you when you broke the rules we made up, tell you where you can and can't shoot, what specifications are legal and what are illegal (which we will decide ourselves over a cup of coffee each Monday), he would be laughed out of the office.

 

What I was suggesting in post #24 was:

 

Close down CASA and re-institute a Department of Civil Aviation (or an aviation section of DIRD), which would then free up several Incorporated Associations to self administer their specialties, more or less what the Sporting Shooters Association of Australia have today.

In a sense you have hit the nail on the head. Statutory authorities can only make rules within the scope of their delegations. They cannot delegate their rule making authority to private third parties such as RAAO's but they do. For example, they require experimental aircraft operators to undertake SAAA's Maintenance course but then tacitly allow SAAA to make a rule that you must be a member of the SAAA to participate in the course. This is a delegation of legislative rule making that is not permitted. GFA does similar things.

On the matter of liability from CASA's 2014 Annual report:

 

INSURANCE AND INDEMNITIES

 

The Commonwealth indemnified CASA in relation to

 

liabilities associated with acts or omissions that occurred

 

before the expiry of two deeds of indemnity in July and

 

August 1998. Since then, commercial insurance has been

 

arranged to cover those risks.

 

In 2013–14, CASA held aviation and general liability,

 

professional indemnity, directors’ and officers’ liability,

 

and a range of other corporate insurance.

 

Aviation and general liability

 

Aviation and general liability insurance provides coverage

 

for injuries caused to third parties or to the property of

 

third parties as a result of negligence arising out of the

 

performance of CASA’s functions under the Civil Aviation

 

Act 1988, the Civil Aviation (Carriers’ Liability) Act 1959

 

and other applicable legislation.

 

Professional indemnity

 

CASA’s professional indemnity insurance covers claims

 

arising from breaches of duty by a CASA officer.

 

Directors’ and officers’ liability

 

In 2013–14, CASA held insurance protecting directors and

 

officers from liability for the consequences of wrongful acts

 

as defined in CASA’s Comcover policy.

 

So any presumed risk to Government is negated by insurance.

 

Their 2014 financial also make good reading (p.121) shows that less than 10% of their revenue is derived from fees Most revenue is from fuel levies and appropriation from government. A 10% staff reduction would enable them to not charge fees - anyone who has dealt with public bodies knows that in many instances the cost of raising an invoice is greater than the invoice value.

 

 

[Guest Andys@coffs]

please..... Anyone who has insurance knows that if risk is insured and you don't manage your risk the policy cost will reflect that in yrs to come...presuming that you can actually renew... RAAus knows this first hand, as does CASA. Arguing that insurance here fully protects the government is in effect a true statement but it isn't just the CASA policy, but rather the combination of RAAOs and CASA policies AND THE GOVERNMENT SELF INSURANCE THAT TAKES OVER ONCE POLICY LIMITS ARE REACHED. Furthermore as RAAus found out, insurance policy's don't protect precedents, rather insurance company's, once legal action is underway, may well have different drivers to settle than the organisation who purchased the policy may want the case to be defended. Without fail insurance policy T's and C's will say that running a defence is entirely their remit, and that if the organisation doesn't allow them control then the policy will be cancelled......

 

 

[facthunter]

CASA is the AUTHORITY. If it delegates it (and THAT is contentious) it must specify how it does ensure their function can be GUARANTEED to be done correctly by the concern that the authority is passed on to. To ensure that body doesn't go bankrupt it would have to indemnify it and remunerate it at an appropriate rate to at least cover reasonable expenses. IF RAAus went broke the case would flow on to the CASA. by a natural pathway. That has been the situation so far and I can't ever see the situation being any different..

 

CASA would appear to be a more difficult body to get money from as they have resources, and non genuine ?? kite flying would be less likely from some litigants. The extent of cover is easily found out, so the Lawyers know what is in the pot, so go for an out of court settlement rather than robustly contesting it as you KNOW the end result and there is always pressure to get a settlement.. Result No one wants to insure us. CASA should not set out to destroy us without being willing (and able) to assume the role they expect the RAAus to play. Nev

 

 

[Jim McDowall]

please..... Anyone who has insurance knows that if risk is insured and you don't manage your risk the policy cost will reflect that in yrs to come...presuming that you can actually renew... RAAus knows this first hand, as does CASA. Arguing that insurance here fully protects the government is in effect a true statement but it isn't just the CASA policy, but rather the combination of RAAOs and CASA policies AND THE GOVERNMENT SELF INSURANCE THAT TAKES OVER ONCE POLICY LIMITS ARE REACHED. Furthermore as RAAus found out, insurance policy's don't protect precedents, rather insurance company's, once legal action is underway, may well have different drivers to settle than the organisation who purchased the policy may want the case to be defended. Without fail insurance policy T's and C's will say that running a defence is entirely their remit, and that if the organisation doesn't allow them control then the policy will be cancelled......

If an insurable event occurs in general terms you are insured irrespective of a when the claim is made so you can change insurers or lapse the policy. "As RAAus found out" found out what in which circumstances?

Of course insurers stand in the insured stead it is the basis of a hundred of years of insurance law.

 

Why are you so worried that "THE GOVERNMENT SELF INSURANCE THAT TAKES OVER ONCE POLICY LIMITS ARE REACHED" - there are many situations where governments have and will absorb the losses of statutory authorities.

 

I am proposing that individuals hold the various delegations from CASA in their own right. To draw CASA into an action and lose an plaintiff would have to prove that CASA was in some way negligent - a very difficult thing to prove. Clearly there may be some mistakes along the way but this how systems are improved - its the way our system develops.

 

 

[Jim McDowall]

CASA is the AUTHORITY. If it delegates it (and THAT is contentious) it must specify how it does ensure their function can be GUARANTEED to be done correctly by the concern that the authority is passed on to. To ensure that body doesn't go bankrupt it would have to indemnify it and remunerate it at an appropriate rate to at least cover reasonable expenses. IF RAAus went broke the case would flow on to the CASA. by a natural pathway. That has been the situation so far and I can't ever see the situation being any different..CASA would appear to be a more difficult body to get money from as they have resources, and non genuine ?? kite flying would be less likely from some litigants. The extent of cover is easily found out, so the Lawyers know what is in the pot, so go for an out of court settlement rather than robustly contesting it as you KNOW the end result and there is always pressure to get a settlement.. Result No one wants to insure us. CASA should not set out to destroy us without being willing (and able) to assume the role they expect the RAAus to play. Nev

"IF RAAus went broke the case would flow on to the CASA. by a natural pathway" Not true - as a matter of policy a Government do not bail out private bodies particularly in legal disputes unless it is to save its own skin ie it is aware of shortcomings in the arrangements with the private body. RAAus is a private organisation not a creature of Government.

 

 

[facthunter]

I have to dispute that Jim. Generally litigants list both. Also IF the RAAus don't do the job right It means that CASA supervision has been lax. RAAus has powers that arise from the relationship with CASA and are delegated. I suggest CASA may be on thin ice here. It CAN'T delegate out of it's responsibility, but there you go.. Nev

 

 

[Jim McDowall]

I have to dispute that Jim. Generally litigants list both. Also IF the RAAus don't do the job right It means that CASA supervision has been lax. RAAus has powers that arise from the relationship with CASA and are delegated. I suggest CASA may be on thin ice here. It CAN'T delegate out of it's responsibility, but there you go.. Nev

Of course litigants throw a wide net but it is a big jump to prove that CASA's supervision has been lax if RAAus screws up - Look at the case of Echin and CASA?Southern Tablelands gliding case and others. Anyway I am not concerned about RAAO's as a solution as I think I have demonstrated that they are a flawed approach that will ultimately kill off recreational aviation. Recreational aviation will, in my view, will only survive if individuals operating commercial under specific delegations similar to those held by RAAO's or their officials if for no other reason that members will desert RAAO's as they feel that are not acting in their interests (which if they are associations they obligated to do even if it means the demise of the organisation).

 

 

[Guest Andys@coffs]

Jim said:- I think I have demonstrated that they are a flawed approach that will ultimately kill off recreational aviation........

 

Righto...lets dig down into that....When will this killing off occur and what do you see as the trigger point for the commencement of the downfall?

 

I ask in that RAAus membership and aircraft registrations are growing still...not at an enormous rate but one that is clearly upward in trend and sustainable in my opinion......If killing off is in the wings within the RAAus patch we aren't seeing any evidence of it.... so what evidence to back your assertions do you have?

 

Andy

 

 

[robinsm]

Jeez Jim, doom and gloom, pessimism and failure. Must be a fun time when you are reading the paper? Why are you so down on RAA Aus, we need optimism and help not naysayers and pessimists.

 

I was always told that if there is a problem, dont present it alone, present it with an answer and at least we have a direction to look in........do you have a solution or at least a positive direction to follow?

 

 

[Riley]

Jim said:- I think I have demonstrated that they are a flawed approach that will ultimately kill off recreational aviation........Righto...lets dig down into that....When will this killing off occur and what do you see as the trigger point for the commencement of the downfall?

 

I ask in that RAAus membership and aircraft registrations are growing still...not at an enormous rate but one that is clearly upward in trend and sustainable in my opinion......If killing off is in the wings within the RAAus patch we aren't seeing any evidence of it.... so what evidence to back your assertions do you have?

 

Andy

Andy, as much as both I love ya and admire your tenacity in attempts to sort out the mess that RAA has allowed itself to evolve into, this is the first instance where I detect you offering 'politspeak' as a response. Any members who have lived thru the degradation of administrative and operational capabilities of the AUF/RAA (and to be fair, the recent slow comeback) over the past decade must surely acknowledge that recreational aviation as we know it is on shaky grounds in the short term. There may well be a slight increase in current membership & AC registrations but I sincerely doubt (failing a CASA/RAA/SAAA epiphany) that the majority of these new members and a lot of the old members will still be around in 5 0r 6 years to applaud where the association has taken (or perhaps) left us in the light of the existing progress(??). I, myself am questioning if I can see a light at the end of the tunnel. Not having a shot at you personally but the gloom & doom sayers definitely have a platform that warrants consideration. I'd be very pleased to eat crow if I'm off base. cheers Riley

 

 

[Guest Andys@coffs]

Riley Im sorry if you thought it was politspeak...It wasn't meant to be....If my response leads people to believe that "all is well" then Ive done a poor job of communicating.

 

Improvement is slow, because the things we have to improve on aren't minor in nature.

 

Our back Office systems are no better today than they were 2 years ago, improvements to process rather than system has improved on capacity constraints which buys us the time to implement that system changes. A new CEO has had an almost immediate improvement in office morale, and our employee team is a happy one which is a 180 degree turn around on what we had. That fact alone is working towards our long term survival where as a poorly motivated team with high turnover works directly against it.

 

Systems requirements gathering for our back end systems is all but complete and subject to board approval we will start the long talked of upgrade.

 

Relationships with our key stakeholder from CASA is a 2 edged sword as always.....We are clearly critical of the jabiru issue in terms of process, and in terms of that issue as the Feb email newsletter said last night "On the 8 February 2015 we submitted a FOI request to CASA for further details regarding CASAs decision to limit Jabiru powered aircraft operations. We are awaiting a reply." and that request will no doubt be an irritation to some within CASA. At the same time the head man in CASA that looks after all recreational aviation (No not Lee U, his boss) is more comfortable with the RAAus management and board than he has ever been before if I understand the briefing of the CEO and President who meet with him regulaqrly to discuss those things we agree on, and those things that we differ on. While on paper those things might seem minor the reality is that he is the one man who really has the ability to vastly restructure the entire RAAO environment. Its our view that in keeping him comfortable with our progress and directions, improvements etc we are working to preserve or improve on our members needs.

 

So, in summary, we still have lots to do, eating an elephant isn't a single sitting activity, however we know what the elepehant looks like, and have a plan short and long term to deal with it. If that means I come across with a positive spin then IMHO its because its warranted

 

Andy

 

 

[Jim McDowall]

Jim said:- I think I have demonstrated that they are a flawed approach that will ultimately kill off recreational aviation........Righto...lets dig down into that....When will this killing off occur and what do you see as the trigger point for the commencement of the downfall?

 

I ask in that RAAus membership and aircraft registrations are growing still...not at an enormous rate but one that is clearly upward in trend and sustainable in my opinion......If killing off is in the wings within the RAAus patch we aren't seeing any evidence of it.... so what evidence to back your assertions do you have?

 

Andy

Just look at the GFA - over 1000 pages of "rules" and membership declining, hours flown declining. The same thing happens with many "volunteer" organisations. The founding generation get is going and it grows then as it reaches a size its own overhead begins chewing up the benefit to members and they enter a long slow decline. I am not down on RAAus - I am concerned that its role is becoming less member orientated as its "regulatory regime" increases.

BTW in other threads aren't you expressing concern about these very issues especially the financial viability of RAAus?

 

I am proud to be a member of RAAus and locally am part of a small bunch of enthusiastic members who love this end of aviation. I have built a 95.10 aircraft and am seriously thinking of building something else - obviously not someone who is down on RAAus.

 

I am just challenging the role that RAAO's play - I think that they would be better served not to be "regulators" and achieve more by being active advocates.

 

 

[Jim McDowall]

Jeez Jim, doom and gloom, pessimism and failure. Must be a fun time when you are reading the paper? Why are you so down on RAA Aus, we need optimism and help not naysayers and pessimists. I was always told that if there is a problem, dont present it alone, present it with an answer and at least we have a direction to look in........do you have a solution or at least a positive direction to follow?

Yes, from the start I have been promoting a solution.

I am not down on RAAus - I am concerned that its role is becoming less member orientated as its "regulatory regime" increases.

 

I am proud to be a member of RAAus and locally am part of a small bunch of enthusiastic members who love this end of aviation. I have built a 95.10 aircraft and am seriously thinking of building something else - obviously not someone who is down on RAAus.

 

I am just challenging the role that RAAO's play - I think that they would be better served not to be "regulators" and achieve more by being active advocates.