Part 149

[ShaneA]

Hi all,

 

             I'm pretty new to this so this may be silly question 

 

However what is exactly meant by

 

Surveillance activities of members of the organisations 

 

in Part 149

 

https://www.casa.gov.au/standard-page/key-proposals-development-part-149

 

 

[IBob]

Drones.....sneaking round your place........day and night..........(

 

 

[ShaneA]

must have good battery if its getting out to here 

 

 

[IBob]

'Surveillance'.......unfortunate choice of words.......or Freudian slip indicating punitive policing type attitude?

 

Hopefully what is actually intended is 'monitoring' of the general gitalong.......which would of necessity include compliance???

 

 

[Kenchhidu]

Stalking the forums and your Facebook page for evidence of illegal (fun) activities. ️‍♂️

 

 

[M61A1]

It's very poorly worded.....The way it's written implies that the member are doing the surveillance.

 

Maybe we should be monitoring RAAus and CASA for suspicious activity??

 

 

[Yenn]

Enforcement action where members are in breach of the regulations.

 

That should be a good thing from our point of view. It may be less onerous for RAAus to do the enforcement action than have CASA drop on us with vast fines.

 

 

[turboplanner]

Part 149 of the Civil Aviation Safety Regulations 1998 was, according to the CASA website made on 12/7/18, and came into force on 14/7/18.

 

However a 15 minute search failed to produce an updated Civil Aviation Safety Regulations 1998 copy on the site, or a final, approved Part 149, or even any gazetting information.

 

Given this legislation is now in force, and since it's applicable to Self Administering Organisations, it's critical for RA members to know what they should be doing to safeguard themselves.

 

Has anyone else found an updated CASR 1998, or the approved/Gazetted Part 149 thereof?

 

 

[horsefeathers]

Not sure, but this might be wot you're after?

 

 

[turboplanner]

Thanks HF I’ll have a look at the details

 

 

[Jim McDowall]

Given that Part 149 is predicated on Parts 103 and 105 where the f--- are they? - lost in the bowels of CASA's interminable regulatory development process?.

 

The Senate should chuck this piece of crap out until they see ALL of the relevant legislation.

 

The explanatory statement omits the international requirement (and local I think) for the rules of evidence to be applied in any disciplinary procedure.

 

Also the use of disciplinary procedures applicable to members of organisations (and thus the denial of the most basic rules of evidence that would be applicable in a properly constituted court) rather than properly constituted courts is a misuse of the legislation constituting the organisations.

 

If members of organisations were refugees, the human rights lobby would be all over this.

 

 

[turboplanner]

Given that Part 149 is predicated on Parts 103 and 105 where the f--- are they? - lost in the bowels of CASA's interminable regulatory development process?.The Senate should chuck this piece of crap out until they see ALL of the relevant legislation.

The explanatory statement omits the international requirement (and local I think) for the rules of evidence to be applied in any disciplinary procedure.

 

Also the use of disciplinary procedures applicable to members of organisations (and thus the denial of the most basic rules of evidence that would be applicable in a properly constituted court) rather than properly constituted courts is a misuse of the legislation constituting the organisations.

 

If members of organisations were refugees, the human rights lobby would be all over this.

It's been through the Senate, signed off by the Governor-General and is law.

It is all there.

 

I'm working through it clause by clause, and so far on several clauses CASA appears to have re-assumed liability; effectively the self administering organisation is not self administering at all, CASA are dictating how things should be run; in other words, on those subjects they would be just as well off doing away with the SAO - a shot directly into the foot.

 

 

[Jim McDowall]

Turbs,

 

Within 15 sitting days after tabling a senator may give notice of a motion to disallow the legislative instrument. If the motion is agreed to, the instrument is disallowed and ceases to have effect. If a notice of motion to disallow a legislative instrument has not been resolved or withdrawn within 15 sitting days after having been given, the instrument is deemed to have been disallowed and automatically ceases to have effect.

 

By my count the Senate has up until and include September 19 to disallow this regulation. Yes it is law but not set in concrete yet! and it does not come into effect until "A single day to be fixed by the Minister by notifiable instrument.

 

However, if the provisions do not commence within the period of 12 months beginning on the day after this instrument is registered, they commence on the day after the end of that period."

 

I am not aware of any proclamation by the Minister - too busy fixing the drought I presume.

 

 

[turboplanner]

Comments on:

 

Civil Aviation Legislation Amendment (Part 149) Regulations 2018

 

Disclaimer:

 

I am not a lawyer, and none of the following is reliable legal advice; If you want to know where you stand, get a copy of this legislation, and a copy of the Recreational Aviation Australia Limited Constitution and applicable documents to this legislation, and go see a specialist lawyer.

 

These comments follow a quick skim of he legislation document, and are intended just for discussion, not as reference material, and may be varied after this date.

 

Link to the Regulations: Civil Aviation Legislation Amendment (Part 149) Regulations 2018

 

The link shows the regulations have been through both Houses of Parliament, and have been signed off by the Governor-General, becoming law on July 14, 2018.

 

The Austlii Federal Register of Legislation lists it as "In Force - Latest version - F2018L010030. On this basis, I'm leaving the effective date at July 14 in the comments on this post, HOWEVER, Please note Jim's comments #13. I don't have any reason to doubt him, so it could well be that the effective date moves out. Certainly if I was in the Senate I would be asking for the regulations to be torn up and a fresh start made.

 

Comments (Clauses from the document are in Italics)

 

In the draft stage these were known as CASA Civil Aviation Safety Regulations 1998 Part 149, Part 149 fitting neatly on the end of the CASRs.

 

It would be interesting to know why these regulations were separated from their logical place.

 

As we know, in the mid 1980s, State and Federal governments became concerned about the potential cost to taxpayers of multiple, and large, public liability claims, saw themselves as soft target and began offloading liabilities. By far the most successful example of this was the State road authorities handing over registration of motor vehicles to motor vehicle dealers. Victoria closed down its Department of Labour and Industry almost overnight and stopped factory inspections, and the issuing of “tickets” for cranes, chains and machinery. Many sporting bodies no longer had legislation to comply with, so they established their own.

 

However, by 1998 the State and Federal Ministers set out to address the rump of people who were not insuring themselves, or thought Industry standards and codes were “optional”, and we saw a rash of “Safety” legislation such as the Victoria’s Road Safety (Vehicles) Regulations 1999, which made some key Codes of Practice mandatory, and set penalties for non-compliance,

 

It could be coincidence, but I suspect the Civil Aviation Safety Regulations 1998 Part 149 were intended to be part of that general tightening up of loose cannons, and it seems to read that way.

 

Many members of this forum have complained about being subjected to more and more regulations, and I’ve kept reminding them that they were only just discovering the old regulations they should have been complying with all along.

 

This is the big change; these are new regulations, and there will be a lot of them after the ASAO have realized their obligations and set to work catching up to July 14.

 

That’s the date this legislation applies from, and prior to that date, your ASAO should have provided you with notification, and all the documents required by CASA.

 

If the ASAO has failed to do this make a note of the date, particularly if you are involved in an accident or incident from July 14 until you are notified of the rules you have to follow. That may save you a lot of money. While ignorance of the law is not excuse, it helps if a law wasn’t in place when the accident occurred.

 

Part 149 Approved Self Administering Aviation Organisations

 

When governments set out to off load liability, the cleanest way to do this is to let industry and/or people run their own affairs, assume all risks and make their own codes of practice, benchmark standard and rules, to manage those risks, and assist Courts in deciding whether safe standards were being practiced when an accident occurred.

 

Sometimes governments accidently re-assume risk; for example there is a world of difference between the word “Approved” which is used in this legislation and “Recognised” which is an arms length word when referring to a Self Administering body.

 

149.010

 

CASA may issue a Manual of Standards for this Part

 

(a) Required to be prescribed by the Part 149 Manual of Standards

 

(b) Necessary of convenient to be prescribed for carrying out of giving effect to this Part.

 

If CASA do issue a Manual of standards, then what is the purpose of a Self Administering Organisation. Their Manual effectively imposes Government regulation all the way down to the Participants, so the government reassumes the risk

 

149.085

 

(b) The ASAO must comply with any direction given to the ASAO, or obligation imposed on the ASAO, by CASA under these regulations.

 

Re-assumption of risk – effectively the directives and obligations are being imposed on members by the government body; the ASAO is not self- administering. Any error, confusion inadequacy etc. opens the government up to being a defendant.

 

149.110

 

(1) A change to an ASAO’s exposition must be approved by CASA under regulation 149.115 before the change is made.

 

Re-assumption of risk; the ASAO is prevented from self-administering, becoming a superfluous cost to members.

 

149.120

 

(1) If CASA is satisfied that it is necessary in the interests of aviation safety, CASA may, by written notice given to an ASAO, direct the ASAO to change the ASAO’s exposition.

 

Re-assumption of risk; the ASAO is prevented from self-administering.

 

(2) CASA may, by written notice given to an ASAO, direct the ASAO to remove any of the key personnel of the ASAO from the person’s position. [subject to some CASA definitions]

 

Re-assumption of risk; the ASAO is prevented from self-administering.

 

149.195

 

Organisation and Personnel

 

Re-assumption of risk; the ASAO is prevented from self-administering.

 

CASA is reserving the right to dictate the number and type of personnel.

 

149.205

 

Re-assumption of risk; the ASAO is prevented from self-administering.

 

CASA is dictating qualifications, but not setting a minimum standard.

 

149.210

 

Re-assumption of risk; the ASAO is prevented from self-administering.

 

CASA is dictating qualifications, but not setting a minimum standard.

 

149.270

 

Re-assumption of risk; the ASAO is prevented from self-administering.

 

CASA is dictating the nature of an SMS, and so is legally responsible for any mistakes.

 

149.275

 

Re-assumption of risk; the ASAO is prevented from self-administering.

 

149.280

 

Re-assumption of risk; the ASAO is prevented from self-administering.

 

149.285

 

Re-assumption of risk; the ASAO is prevented from self-administering.

 

149.290

 

Re-assumption of risk; the ASAO is prevented from self-administering.

 

The safer alternative, is some direction is being suggested, is to provide a set of Model Rules, which are not obligatory. This way, the government is responsible for every mistake.

 

SUB PART 149F – Expositions

 

(a)

 

(i) For each of the ASAO’s key personnel, the following information:

 

(e) A description of the ASAO’s Safety Management System required by regulation 149.270

 

(f) A description of the ASAO’s Audit and Surveillance system required by regulation 149.275

 

(g) the ASAO’s aviation administration and enforcement rules

 

You’ll recall the howling down of Ed Herring when he tried to employ a person with SMS experience, to write a fully comprehensive SMS, and the subsequent SMS produced by RAA.

 

(f) is really the compliance and enforcement policy which in my opinion threw all the legal responsibilities onto the CFIs for the students they signed off.

 

Robust and Survivable policies and systems for (e), (f) and (g) needed to have been communicated to all members before July 14, so that members could be complying with them on July 14, when the first accidents and incidents under the new regulations could have been occurring.

 

149.345

 

An ASAO must not contravene a provision of the ASAO’s exposition

 

This would be a reasonable example of a requirement on an ASAO (leaving out any conditions which CASA may have “required”). The way it reads is that the ASAO writes it’s exposition, then is required by law to live by it.

 

149.400

 

(1) An ASAO must not reject an application by a person for an authorization to undertake an activity administered by the ASAO on grounds other than the eligibility criteria set out in the ASAO’s aviation administration and enforcement rules.

 

Where this conflicts with the ASAO’s Constitution, Special/Emergency meetings should have been held to ensure no conflict by July 14, or an urgent bulletin of intent to change should have been advised to members.

 

The ASAO by now needs to have considered, and have rules in place for eligibility, including assessment of members with disabilities etc. which may not prevent them from flying.

 

GENERAL

 

A lot of Strict Liability penalty clauses for the ASAO.

 

The standard of personnel required may result in a much higher salary bill.

 

Exposition, or an ASAO means:

 

(a) The set of documents approved by CASA under regulation 149.080 in relation to the ASAO, or:

 

(b) If the set of documents is changed under regulation 149.115 or 149.120, or in accordance with the process mentioned in paragraph 149.340 (i) – the set of documents as changed.

 

Hopefully all ASAO members have been quiet over the last few days reading their new ASAO documents and rules.

 

From the members point of view, if the government has re-assumed legal liability in some clauses, that gives the member a powerful fellow defendant in the case of an accident, but a likely outcome is confusion.

 

I’m not quite sure just how these regulations got through both houses of parliament, but no doubt there were extended periods of consultation where members could have made submissions, and local members of both houses could have been contacted.

 

And remember, this is just my take on the new regulations; you are entitled to an entirely different view.

 

 

[Bruce Tuncks]

Thanks Turbs

 

 

[Jim McDowall]

And there is no provision for what happens if an ASAO goes belly up (most likely in a non-aviation event)? Do those who have invested their hard earned in their favorite pursuit have to wait a couple of years whilst CASA approves a replacement?

 

 

[facthunter]

You would be lucky to find anyone in the Parliament who has a basic knowledge of this matter. The current minister has only been there a short time. and it's a small part of the portfolio he administers (Transport and Infrastructure) I would suggest that re assuming the responsibility arises out of the fact they effectively cannot contract out of a responsibility/liability that arises as the reason for their existence and directly by an act of the federal Parliament. and may have ICAO compliance aspects to it also.

 

Jim, in the past BIG legal action the department is co joined Not equally but in the event the RAAus went broke Didn't have enough insurance/ assetts. I recall prospective Board Members were unsure/concerned they would have their assets exposed to risk. ( with some justification I still believe..Nev

 

 

[Jim McDowall]

The real risk to ASAO is a civil action related to employment or trade practice in which case CASA is out of the frame and RAA's insurers may not be liable. Without wanting to cast aspersions but fraud is another way for the members to wake up one day and find that RAA (or any other ASAO) is no more. It happens a lot in "volunteer" organisations.

 

 

[facthunter]

Once more we are still in no man's land. Where to from here? Nev

 

 

[Jim McDowall]

Where to from here?

Petition your local member and all the senators in your state highlighting issues such as those highlighted here and ask theme to move a disallowance motion. "Its not fair" wont work

 

 

[facthunter]

The better it's done, and more facts the more effective. I wonder what "OUR Organisation " Thinks. They wouldn't be game to be so proactive. That's probably where we are at there. Pity I'm now not with AOPA.. Nev

 

 

[turboplanner]

Petition your local member and all the senators in your state highlighting issues such as those highlighted here and ask theme to move a disallowance motion. "Its not fair" wont work

Apart from that, you should have been consulted about these regulations and given the chance to comment; if you were, then no issue; if you weren't then you should be checking to see whether your administering body is on the ground and running with the regulations. Maybe they consulted with CASA on your behalf.

 

The bodies affected include:

 

Australian Ballooning Federation (ABF)

 

Australian Parachute Federation (APF)

 

Australian Skydiving Association (ASA)

 

Australian Sport Rotorcraft Association (ASRA)

 

Australian Warbirds Association Limited (AWAL)

 

Gliding Federation of Australia (GFA)

 

Hang Gliding Federation of Australia (HGFA)

 

Model Aircraft Association of Australia (MAAA)

 

Recreational Aviation Australia (RA-Aus)

 

Sport Aircraft Association of Australia (SAAA)

 

 

[turboplanner]

The better it's done, and more facts the more effective. I wonder what "OUR Organisation " Thinks. They wouldn't be game to be so proactive. That's probably where we are at there. Pity I'm now not with AOPA.. Nev

You would have expected AOPA to be one of the first to be involved, and they may well have been, but then again, how many Recreational Aviation pilots do they represent?

 

 

[Jim McDowall]

If anyone is motivated the list of Members and Senators can be found at:

 

https://www.aph.gov.au/Senators_and_Members/Guidelines_for_Contacting_Senators_and_Members

 

It seems that many do not like to use email.

 

 

[Jim McDowall]

I understand that the last consultation was October or November last year when the bodies were summonsed to a meeting in Sydney where there were "told" not "consulted" on how part 149 would be promulgated. A review of GFA executive committee minutes indicates that there were other meetings with the bodies but in general the memberships of prospective ASAO's were not told about these meetings let alone consulted on the detail.