Draft Constitution?

[kasper]

Don:I have sent my concerns to the ceo and my local board member. I started listing I another thread here all the incorrect references etc but stopped when i ran out of time that particular day. I outlined my major 6 concerns but neither the ceo or the member agreed with my concerns.

I assume (perhaps wrongly) that a legal firm prepared the draft. Hence my comments on appalling. If it was prepared by you, am unpaid board member, then of course i rescind that comment. If it was a law firm then the comment stands and i question the advice prepared by a firm that pays that little attention to details.

Same process here (other than sending to local member - I went to CEO as requested by Board) and apparently even less response because I have not even been told that the issues I raised are not agreed with - just silence.

But then again last time I pointed out to RAA a legal constrcution error the method of operation of RAA was to say I am being uncooperative and trying to be difficult ... until they got a redrafted section past CASA to address EXACTL Y the error I had raised - RAA are demonstrably not being fair and open with members and appear to be bent on 1 direction without regard of member concern.

 

And hold fire on comments on me not being constrcutive I am half way through an analysis of the two corporate forms and putting together a new consitution draft myself to address items that I list as being a concern to me ... and I will post here once complete

 

 

[shags_j]

Oh, and remember how we said it was an early draft and that there would be revised drafts and serious consultation before the final draft is put to a vote. Doesn't that mean that the thing you are going to vote against (the current draft) will have been superseded?

Ok let me reiterate: If the draft goes through in current form without the changes made as outlined then I will not be voting for it and will active advocate against it.

 

So, other than your post on here today bagging the first draft (but not the drafters) please tell us all about the effort you've put into modernising RAAus? Or would you just be an armchair negative critic who just wants to fly?

I'm sorry are you trying to offend me because I am commenting on a constitution that has been put out for comment? I have no skills that will be able to assist RAAustralia. I am a relatively low hour pilot compared to the rest of you who likes to fly occasionally. However if something like this comes out where we are invited for input then I will, particularly if I feel particularly strongly about it, provide input.Mike suggested I provide all the errors in the constitution that I have found and was originally quite taken aback but if it is prepared by the board and not a legal firm then I will actually do this.

 

I'm not setting out to offend anyone. Just because I haven't run for the board or anything (reason being that I have no skills or experience to be a board member or helpful in any way) doesn't mean I don't appreciate the hard work all of the board put in.

 

 

[Jim McDowall]

CASA can not vary the contract amongst RAAus Members as it is not a member of RAAus.CASA backed by federal legislation directs RAAus to do its bidding in certain aspects of its operations. We don't get to vote on that.

So Don, what legislation gives CASA the right to impose SMS on RAAus? And if my rights, liabilities or obligations are varied how is the contract not varied?

 

 

[Jim McDowall]

CASA can not vary the contract amongst RAAus Members as it is not a member of RAAus.CASA backed by federal legislation directs RAAus to do its bidding in certain aspects of its operations. We don't get to vote on that.

Sorry but I must disagree with just about all of the above. RAAus Incorporated is a Corporation right now, in its present form of incorporation. Because it operates nationally, it is registered and comes under ASIC. The form of incorporation being proposed ends up with RAAus still being a Corporation.

 

Companies via the Board must act in the best interests of the members of the company. Corporations, no matter in what form, may not favour one member over another. The current Board may be elected by regions but, once elected, the Board Members must act in the best interests of the corporation even if somehow that disadvantaged the members of their region.

 

On the contrary, members can direct the board by moving a motion at a General Meeting and having the motion supported by the majority required by the Constitution and the directors ar obliged to carry out the direction of the members (if lawful).

Don I suggest that you have a look at the recent decision in the Federal Court (summarised at https://www.allens.com.au/pubs/cg/fucg03aug15.htm) and reconsider your view. In general terms, it is the duty of directors to do what is good for the company which is not necessarily good for the members.

 

 

[Jim McDowall]

Correct, the self-administering body can choose how it wishes to manage risk (how it wishes to minimise payouts for alleged negligence)However, I didn't say that, I said "There are some things which CASA spells out (such as the 2010 requirement for board members to set up a Safety Management System.

Here's a link to the CASA Sport Aviation Self-Administration Handbook 2010, which among other things lists the duties of board members.

 

http://flysafe.raa.asn.au/regulations/casa_sport_aviation_handbook.pdf

 

Sorry, forgot to attach the link to the CASA book earlier.

And why do you think that this document has legislative force?

 

 

[Jim McDowall]

Even the things he got wrong?I understand your concerns Shags. I must admit I thought this was a bit generous when I first read it. Where RAAus has close to a monopoly in some branches of aviation, refusal of membership by directors perniciously or frivolously would, I imagine, be actionable because of the denial of "Natural Justice".

 

How long have you felt this way about the draft/ Since last October and the AGM? Or, more recently?

 

Would the President Mick Monck or CEO Michael Linke or any Board Member be aware of your concerns, Shags?

 

Would you be prepared to put in the missing effort to get the Constitution up to a standard you would judge to be at least satisfactory?

 

If not, is it fair to campaign here that the proposal is flawed and should be voted down?

 

If you have advised them, have you had any response at all?

 

So, as I understand you, the new Constitution is of poor quality, suffers from lack of effort being put into drafting it and the result is "appalling" but that is not a putdown of the Board Members responsible for it? Who is it a put down of? The drafting fairy? Give me a break.

 

Oh, and remember how we said it was an early draft and that there would be revised drafts and serious consultation before the final draft is put to a vote. Doesn't that mean that the thing you are going to vote against (the current draft) will have been superseded?

 

Would you be surprised to learn that you are not the only one of our 10,000 avid draft constitution readers who see this one aspect as an issue?

 

So, other than your post on here today bagging the first draft (but not the drafters) please tell us all about the effort you've put into modernising RAAus? Or would you just be an armchair negative critic who just wants to fly?

 

It seems that sometimes when I am not accused of putting in insufficient effort and not thought to have produced appalling work which I clearly have no intent of remedying I somehow lose my sense of what's funny.

Don, I appreciate the effort that a variety of people have put into the drafting, and I see Shags point about membership removal. But the way this discussion has developed really illustrates that the business model is broken and a new regulatory approach is required

 

 

[turboplanner]

When the government sets up an arms length body such as CASA it gives it the power to make rules.

 

I haven't researched CASA, but if you hit the net I expect you would find a CASA Act (not necessarily by that name), or a series of Acts, which set out the powers of CASA.

 

What the body then often does is rule by exception.

 

To give you an example away from the confusion of aviation;

 

In Victoria in the past there was legislation to allow the carriage of passengers in Metropolitan Omnibuses (MO) on routes, or Coaches (MC) for charter and touring.

 

An omnibus didn't have any luggage bins, and the seats were like McDonalds.

 

A coach had heavily padded seats and luggage bins.

 

School buses fitted into the Metropolitan Omnibus Category

 

The Bus and Truck industries were managed by the Transport Regulation Board (TRB) whose officers carried guns and had cars with lights and sirens, many in people's opinion descended from escapees from Nazi Germany.

 

When country school bus operators approached the TRB and asked if they could put padded seats and luggage bins in their buses, and do charter, such as bringing people from a local town to Melbourne sporting events, or taking the local basketball team to another town for a game, the TRB made a regulation where they would be exempted from the strict MO specifications, and could buy buses with luggage capacity as THEY specified and seats THEY specified as well as a list of equipment they'd been dying to load us with for years. (Sound familiar?)

 

 

[Jim McDowall]

When the government sets up an arms length body such as CASA it gives it the power to make rules.I haven't researched CASA, but if you hit the net I expect you would find a CASA Act (not necessarily by that name), or a series of Acts, which set out the powers of CASA.

What the body then often does is rule by exception.

 

To give you an example away from the confusion of aviation;

 

In Victoria in the past there was legislation to allow the carriage of passengers in Metropolitan Omnibuses (MO) on routes, or Coaches (MC) for charter and touring.

 

An omnibus didn't have any luggage bins, and the seats were like McDonalds.

 

A coach had heavily padded seats and luggage bins.

 

School buses fitted into the Metropolitan Omnibus Category

 

The Bus and Truck industries were managed by the Transport Regulation Board (TRB) whose officers carried guns and had cars with lights and sirens, many in people's opinion descended from escapees from Nazi Germany.

 

When country school bus operators approached the TRB and asked if they could put padded seats and luggage bins in their buses, and do charter, such as bringing people from a local town to Melbourne sporting events, or taking the local basketball team to another town for a game, the TRB made a regulation where they would be exempted from the strict MO specifications, and could buy buses with luggage capacity as THEY specified and seats THEY specified as well as a list of equipment they'd been dying to load us with for years. (Sound familiar?)

So some of their relatives work for CASA?

The publication is a "handbook" not a properly constructed set of rules within a legal framework.

 

 

[Keith Page]

When the government sets up an arms length body such as CASA it gives it the power to make rules.I haven't researched CASA, but if you hit the net I expect you would find a CASA Act (not necessarily by that name), or a series of Acts, which set out the powers of CASA.

What the body then often does is rule by exception.

 

To give you an example away from the confusion of aviation;

 

In Victoria in the past there was legislation to allow the carriage of passengers in Metropolitan Omnibuses (MO) on routes, or Coaches (MC) for charter and touring.

 

An omnibus didn't have any luggage bins, and the seats were like McDonalds.

 

A coach had heavily padded seats and luggage bins.

 

School buses fitted into the Metropolitan Omnibus Category

 

The Bus and Truck industries were managed by the Transport Regulation Board (TRB) whose officers carried guns and had cars with lights and sirens, many in people's opinion descended from escapees from Nazi Germany.

 

When country school bus operators approached the TRB and asked if they could put padded seats and luggage bins in their buses, and do charter, such as bringing people from a local town to Melbourne sporting events, or taking the local basketball team to another town for a game, the TRB made a regulation where they would be exempted from the strict MO specifications, and could buy buses with luggage capacity as THEY specified and seats THEY specified as well as a list of equipment they'd been dying to load us with for years. (Sound familiar?)

Hello Turbo,

Just a matter of interest, for want of a better description or interpretation.

 

CASA is a board which has been given the duty of administering aviation in Australia.

 

This is done by way of a government act.

 

So CASA is a board with all it warts, bumps with its top heavy bureaucracy.

 

Regards,

 

KP

 

 

[turboplanner]

Hello Turbo,Just a matter of interest, for want of a better description or interpretation.

CASA is a board which has been given the duty of administering aviation in Australia.

 

This is done by way of a government act.

 

So CASA is a board with all it warts, bumps with its top heavy bureaucracy.

 

Regards,

 

KP

I called it a Body, but the name itself doesn't matter; arms length bodies can be called Boards, Commissions, or just given a name, such as "Melbourne Water" - it's all in what the relevant Act spells out.

 

 

[Keith Page]

Yep.. QUANGO..

 

 

[DWF]

Quango: Quasi-autonomous non-governmental organization, an organization or agency that receives funding from a government but is able to act independently.

 

Quango: a semi-public government-financed administrative body whose members are appointed by the government.

 

…………………………………………….

 

CASA's role

 

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.

 

CASA's primary function is to conduct the safety regulation of civil air operations in Australia and the operation of Australian aircraft overseas. It is also required to provide comprehensive safety education and training programmes, cooperate with the Australian Transport Safety Bureau, and administer certain features of Part IVA of the Civil Aviation (Carriers' Liability) Act 1959.

 

The Civil Aviation Regulations 1988 and the Civil Aviation Safety Regulations 1998, made under authority of the Civil Aviation Act, provide for general regulatory controls for the safety of air navigation. The Civil Aviation Act and CAR 1988 empower CASA to issue Civil Aviation Orders on detailed matters of regulation. The CASRs 1998 empower CASA to issue Manuals of Standards which support CASR by providing detailed technical material.

 

From the CASA web site: https://www.casa.gov.au/standard-page/about-casa

 

………………………………..

 

The CASA structure appears to be very similar to that of RAAus and most other bodies corporate in that it has a Board (in this case appointed by the Government), a CEO (appointed by the Board, I think) and an administrative hierarchy which implements the directives of the Board and CEO in accordance with the Act (constitution).

 

 

[facthunter]

If that's a direct extract then I would argue they are not fulfilling the requirements of the act fully in a few areas, particularly with Comprehensive Safety and Training Programmes. CASA's method relies on a punitive system, of Strict Liability and increasingly so. There would be an implied requirement to make all educational material be unambiguous and comprehensive, which it increasingly isn't. Error free would be expected as par for the course and the Nature of Aviation Regulation. Nev

 

 

[turboplanner]

If that's a direct extract then I would argue they are not fulfilling the requirements of the act fully in a few areas, particularly with Comprehensive Safety and Training Programmes. CASA's method relies on a punitive system, of Strict Liability and increasingly so. There would be an implied requirement to make all educational material be unambiguous and comprehensive, which it increasingly isn't. Error free would be expected as par for the course and the Nature of Aviation Regulation. Nev

I'm planning to use that argument if I get pinged.

 

 

[turboplanner]

The publication is a "handbook" not a properly constructed set of rules within a legal framework.

You're probably right.

So let's go to the next step; you decide its just a handbook, legally unenforceable, so you disregard it.

 

Some time later you are involved in a crash, where your passenger is seriously injured, and where investigators trace the cause directly to the fact that "X", which the handbook required was not carried out by you.

 

The passenger sues CASA, and you, for negligence.

 

CASA's defence is they carried out their duty of care for requiring you to do "X"

 

What's your defence going to be?

 

 

[Keith Page]

At the end of the day CASA has to be obedient to the minister and his bureaucrats..

 

RAAus is there with CASA's blessings. Just look at the debacle over the Jabiru engines who dobbed who in. When that is sorted out we will move on. For some good listen get that recording of Senator Barry O'Sullivan quizzing the CASA director. Barry knows the answers and they would not come clean.

 

Regards,

 

KP

 

 

[facthunter]

You must do the safest procedure for the safety of the aircraft. and other affected persons and aircraft. Overall safety best outcome.. In some instances that may involve breaking a regulation. This shouldn't be common but is a possiblity. Pilots are not generally aware of situations like that. Some are not even aware that they can require a different course of action to the clearance issued if there is an over riding operational reason to do something else.

 

Keith I wouldn't agree with that. CASA wouldn't be able to do a ministers bidding if it was not in order. They are an INDEPENDENT statutory Authority instituted under an act of Parliament to administer under LAW. Of course they can be questioned by the Senate in Estimates or such, who have much more power than most individuals. They could also be taken to Court but as they will make you aware they have deeper pockets than you and have been observably vindictive on occasions. Also IF your organisation is operating under their rules you don't want to make an enemy of them makes sense but is not correct, because you are supposed to be able to take legal action or dispute their opinion, without fear or favour. In a perfect world maybe? Nev

 

 

[Keith Page]

You're probably right.So let's go to the next step; you decide its just a handbook, legally unenforceable, so you disregard it.

Some time later you are involved in a crash, where your passenger is seriously injured, and where investigators trace the cause directly to the fact that "X", which the handbook required was not carried out by you.

 

The passenger sues CASA, and you, for negligence.

 

CASA's defence is they carried out their duty of care for requiring you to do "X"

 

What's your defence going to be?

You missed it Turbo need to go back quite a bit to safety training. All organisations are out there doing safety training till the cows come home. What is "safety training."? Now it would be better to train "safety culture"?

People will resent safety after safety, develop a culture and they will take that on board.

 

Regards,

 

KP.

 

 

[turboplanner]

I narrowed it right down to something, "X", which CASA included in that "handbook", assuming the "handbook" is legally unenforceable, because I'm interested in Jim's thoughts on it.

 

I'm not talking about the SMS, or safety generally, just this very specific hypothetical example.

 

 

[Jim McDowall]

The following illustrates why the system imposed upon us is broken. These observations are not a criticism of RAAus for it is the victim here. Please take the time to read it carefully.

 

CASA and RAAus annually enter into an agreement. In 2013/14 it was titled “Funding for the Activities of Recreational Aviation Australia Inc 2013/14”. (I have been unable to locate a more recent deed.)

 

The Deed sets outs what CASA is required to do in order to receive $107,534. Amongst those undertaking is a requirement to:

 

“provide CASA with information as to a specific portion of the register of Australian aircraft administered by the RA-Aus...”. There is no reason to think that this provision continues.

 

However, CASR 47.015 (1) (b) specifically exempts 95.8, 95.10, 95.12,95.14, 95.32 and 95.55 aircraft from the requirement to be registered, that is, there is no “portion of the register of Australian aircraft.”.

 

Further, CASR 200.025 provides:

 

Flying unregistered aircraft

 

For paragraph 20AB(1)(a) of the Act, a person is taken to hold a civil aviation authorisation that is in force and authorises the person to perform a duty that is essential to the operation of an unregistered Australian aircraft during flight time if:

 

(a) the person holds a pilot certificate granted by a sport aviation body that administers aviation activities in the aircraft; and

 

(b) the person operates the aircraft in accordance with the sport aviation body's operations manual.

 

And there is more - CASR Part 200 also exempts 95.8, 95.10, 95.12,95.14, 95.32 and 95.55 aircraft from the provisions of the CASR’s.

 

So given that we all spend dollars registering our aircraft if there is no legal requirement to register our aircraft why do we do it? The answer is that CASA, acting without a head of power (it being removed by regulation) has misused its regulatory power and funds to coerce the RAAus into implementing the registration system. That is not to say that RAAus could not do it without being commanded to do so.

 

It gets worse; Section 97AB of the Act determines who can charge fees for “any service provided by the external service provider under this Act, the regulations or the Civil Aviation Orders.” (S.97AB(1)) and “provide a service includes deal with an application or request or do anything.” (S.97AB(5))

 

An “external service provider means a person who is the holder of a delegation under this Act or the regulations, or who is an authorised person within the meaning of the regulations, other than a person in any of the following capacities:

 

(b) an officer;

 

© a person who provides services to CASA under a contract with CASA;

 

(d) a person who, under a contract with CASA, provides services to the public on CASA’s

 

behalf;

 

(e) an employee of a person referred to in paragraph © or (d).”

 

A “person” includes: “expressions used to denote persons generally (such as "person", "party", "someone", "anyone", "no-one", "one", "another" and "whoever", include a body politic or corporate as well as an individual” (Acts Interpretation Act S.2C).

 

Sports Aviation bodies (referred to as RAAO's) such as the RAAus operate under an agreement (ie contract) to undertake certain functions on behalf of CASA. CASA also issues delegations to employees and other functionaries of RAAus.

 

It is my contention that, by virtue of;

 

the exception in the definition of “external service provider”;

 

and the definition of a service:

 

any fee charged by the Association in relation to any aviation related matter is probably unlawful As the various CAOs issued by CASA to facilitate certain exemptions from the Regulations requires the membership of the Association it may also be that its membership fees are also outside the Act (as in “or do anything” ie become a member.(S.97AB(5)))

 

 

[Jim McDowall]

I narrowed it right down to something, "X", which CASA included in that "handbook", assuming the "handbook" is legally unenforceable, because I'm interested in Jim's thoughts on it.I'm not talking about the SMS, or safety generally, just this very specific hypothetical example.

Unless the handbook is incorporated into law somehow it would be a tough argument. I would have had to have demonstrated a disregard for the accepted norms. This is always a problem with prosecutions under WHS law.

 

 

[turboplanner]

I was thinking the handbook could be considered as a similar status to an Australian Standard (also unenforceable), in that it might be used as a defence against negligence.

 

 

[Jim McDowall]

Interesting tack using negligence as a defence against negligence - the handbook is like a list of motherhood statements

 

 

[timb]

Jim

 

CASR 2005 exempts the aircraft being placed on the VH register if:

 

(b) the person operates the aircraft in accordance with the sport aviation body's operations manual.

 

I think from memory (without actually reading it) that the RAAus Ops Manual requires the aircraft to be "registered" under the RAAus system

 

Also, and I forget the timing, but at some point in the past the definition of "Australian aircraft" was amended to include those on the then-AUF register

 

 

[turboplanner]

Interesting tack using negligence as a defence against negligence - the handbook is like a list of motherhood statements

The example I gave assumed that "X" was a legitimate safety instruction.

However, in one case I was involved in, which we lost, one of the primary claims was that a fire marshall failed to use a fire extinguisher in the correct manner which was to aim it at the seat of the flames (he had aimed it around the head and face of the driver to protect his airways, and in another case, where a car burst through a safety fence we lost because the cable join did not comply with either an Australian Standard or the manufacturer's recommendation (forget which).