RAAus and our new Tech and Ops manuals - how to drive a horse and cart through them

[kasper]

Given the changes in the Ops and Tech manuals that have just launched and some of the changes that have crept into the CAOs governing microlights (we are no longer ultralights) I am having a bad day and getting grumpier than usual.

 

Apart for the core frustration of an Ops Manual and Tech Manual now being drafted on completely different formats and the 'fun' of CAO 95.10 changes removing group C and group D airframes from the CAOs I am now getting to the point of wanting to make a point.

 

In another thread I was asked to elaborate on why I thought RAAus in the Tech and Ops manual, RAAus processes and practices were legally problematic.  My concerns are at their core quite technical legal issues that if put before a court could end up with very unexpected outcomes for CASA, RAAus and pilots.

 

To lay out how to get to the risks I see that exist I need to step through basic structural legal control of aviation in OZ and then step backwards into the areas with risk.

 

How does ultralight regulation work in law in Australia – the simplified version

Firstly there has to be a law of the land – the government create a legal obligation on people with attached penalties for breach – in Australia that is the CAA Act and Regs.

Enforcement of that sits with CASA and involves courts enforcing the penalties on breaches.

 

So the first step is in law if you want to fly in an aircraft in the airspace over the legal geography of Australia you have to come within the law and operate within the law. For the most part that means CASA issued pilots license, CASA registered aircraft and CASA oversight of operations of both the airframe and the pilot as they operate in the airspace of Australia.

 

Ultralights – or microlights as we all got legally renamed in the current CAOs – are none of these – no CASA license, no CASA registration, no CASA oversight.

We get out of being a wanton criminal because there are exemptions to the Act and Regs provided for within the structure of the Act and are listed as Civil Aviation Orders – CAOs. 

Practically means if you stay within the limits of the exemption you are OK to fly and CASA cannot do or say a thing to you and you cannot end up in a court for breach of the CAA Act. 

 

The exemptions for the vast majority of ultralights are CAO95.10, CAO95.32 and CAO95.55.

That is how Microlights fly without CASA being directly involved.

 

How well do RAAus and RAAus pilots/aircraft fit within the CAOs when things go not as planned?

Not well is my opinion for the following base issues:

1.       The legal basis on which RAAus can impose an obligation on the airframes and pilots is limited to those necessary to administer the very limited grant of authority under the CAOs.  You cannot in law create an obligation based on a legal requirement where that is not necessary for the administration of the underlying legal grant of power – if CAO does not grant power to RAAus then RAAus cannot impose it on members.

2.       The whole CAO concept is flawed for self administered aviation – if you fail to comply with a CAO requirement it’s not RAAus who can impose limits its CASA … and it CASA on steroids – eg fall outside the 300kg MTOW limit in 95.10 and you are an unregistered aircraft with an unlicensed pilot subject to the full impact of CASA for any and all of that.

It’s a very nasty structure and not well suited to self admin for minor breach. Eg a 95.10 aircraft registered with RAAus ceases to be subject to RAAus as soon as it is overweight – it can ONLY be registered for the purposes of RAAus control when its below MTOW under the CAO.

 

Here in the extreme are some CORE problems with the CASA/CAO/RAAus in this area:

1.       If you are in an aircraft within the CAO exemption for microlights you are required to operate in accord with the Ops manual and to maintain in accordance with the Tech manual (its set out in each of the CAOs) … but as soon as you operate the aircraft outside the Ops or Tech manual requirements your operation of the aircraft or the aircraft itself are no longer within the exemption of the CAO … and if you are outside the CAO exemption RAAus cannot control your operations … CASA have to.

Practical Result - EVERY aspect of the RAAus Ops manual that deals with how you operate CANNOT legally be linked to ANYTHING to do with RAAus disciplining you as a pilot of the aircraft if you fail to comply with that requirement … that is LEGALLY for CASA to do as an unlicensed operator of an unregistered aircraft.

 

2.       EVERY aspect of the RAAus Tech manual that deals with how you maintain and airframe registered with RAAus CANNOT legally be linked to ANYTHING to do with disciplining you as an aircraft operator once you fail to do a maintenance action within the Tech manual … that is for CASA to do as an unlicensed maintenance of an unregistered aircraft and NOT RAAus as you have fallen outside the CAO and outside RAAus control.

 

3.       And for a three line fail it would be patently improper for RAAus to attempt to discipline a member for operating outside the Ops manual or Tech manual because of course the aircraft and operation of the airframe fall outside the RAAus powers as set out in those self-same CAOs once to fail to comply with the Ops or Tech manual.  If anyone were to be disciplined under RAAus for failure to comply with Ops or Tech manuals then it would be open for them to challenge any action taken by RAAus as being outside power.

 

And for the cherry on top it logically is NOT possible to being the RAAus into disrepute - the ultimate no-no under the RAAus documentation because your membership can be cancelled and any future membership denied - by operating an aircraft not within the control of the RAAus because in operating outside the CAO you are not operating an RAAus registered aircraft as an RAAus certificated pilot but are instead an unlicensed pilot in an unregistered aircraft subject to the might of CASA only.

 

Not planning on flying an unregistered aircraft as an unlicensed pilot this week but I am drafting a nice long letter to RAAus to get direct responses to a few very problematic items for me ... particularly as I have a half built airframe here that was intended to be registered with RAAus as a 95.10 and flown on an RAAus pilots certificate that now appears to be outside RAAus ability to register and due to oversights in the new OPs manual would be unable to be certificated to fly even if I could register it as they have omitted the whole group C from the current Ops manual where as the last OPs Manual only failed to require medicals or flight reviews for group C pilots.

[old man emu]

An interesting submission, which seems logical -  320kg MTOW limit in 95.10 and the aircraft is out of RAAus jurisdiction. But how does that compare to this situation in the Law: Speed limit is 100 kph. You do 110 kph. Has the Law the power to punish you?

 

I'd like to put the argument that in the example of MTOW of aircraft, the RAAus is like a stockman working the flank of a mob of cattle. While the mob moves as a compact herd, the stockman does not have to react, but as soon as one beast moves out of the mob, it's his job to push it back.

 

The power of the RAAus is to ensure that the mob stays together, and to push breakaways back. That can be done in a number of ways from a warning to handing over to CASA for the full works. That leaves CASA to concentrate on other areas of licensing and maintenance, where they now only seem to be worrying about fare-paying users, both passenger and freight.

[kasper]

Emu,

 

your analogy falls down instantly as it’s not a question of practical management but legal jurisdiction that applies. 
 

RAAus has no legal ability under the CAOs to have coverage of any pilot/airframe not within the CAOs themselves.  
 

the legal situation is that it’s only CASA with their very heavy powers that can legally take action once you are outside the CAOs - that is the real problem with the structure of self admin. 
 

the legal position is that if I go outside the CAO exemption by not following the ops or tech manual then RAAus is legally in the same position to manage me as I am when I am flying a GA aircraft on my CASA license.  They have no legal authority.
 

And that is the complete toothless  nature of RAAus is actually admonishing or disciplining any member because they could just say none of your business.   

Edited April 12, 2021 by kasper

[Thruster88]

Here is an example of how it works.

 

Thruster Gemini Rotax503 DCDI STATUS: Review complete

 

STATUS: Review complete The pilot was reportedly conducting ground strip runs and "hops'', however on one of the runs the aircraft became airborne and climbed and then lost control. RAAus determined the pilot did not hold current RAAus membership, was not appropriately endorsed for the type of aircraft, his BFR was overdue and the aircraft was not registered. His Pilot Certificate has been suspended and the matter referred to CASA as a breach of Section 20AB of the Civil Aviation Act (1988).

[kasper]

And that is exactly what I’m talking about in term of toothless and harsh at the same time. 
 

RAAus could not discipline as they had no authority and all they could do is report to CASA.

 

not good self administration as the delegated authority can’t actually do anything to the person operating outside the cao. 
 

my only comment was that the pilot involved had his pilot certificate suspended.  I think if the pilot wanted to push it and go to court RAAus may find that they have no legal basis for suspending the certificate ... a member of the association operating an aircraft not within the CAO means legally it’s the same as the pilot operating a GA aircraft improperly or a glider improperly ... it’s not an RAAus once it’s outside the CAO. Yes silly.  Yes dangerous.  But NOT an RAAus pilot and aircraft involved so no legal authority 

Edited April 12, 2021 by kasper

[jackc]

The more I read of this, the more confused I become, have the changes to the tech and ops manuals really made any difference?  Has anything been made simpler?   We can’t buy printed copies of these manuals which makes things more problematic,  trying to mark pages in digital copies and quickly refer between sections is a nightmare.

I always look for printed books on anything that is regulatory.

Just imagine IF ERSA was digital only? 
if RAA and CASA want people to comply with regs etc, they must facilitate relatively easy interpretation of those regulations.
Right now I an not seeing it........

[old man emu]

2 hours ago, kasper said:

your analogy falls down instantly as it’s not a question of practical management but legal jurisdiction that applies

Thruster's post giving a real example does clarify the jurisdictional issue. Basically, in the case that Thruster described, Joe Citizen could have done exactly what the RAAus did and reported straight to CASA. This shows that RAAus has no authority. 

 

43 minutes ago, jackc said:

We can’t buy printed copies of these manuals

A good case in this digital age for the manuals to be made available in pdf format so that people could have ready access to the contents. I'm always going to the State and Federal sites to access Acts and Regulations, but you do hove to know what you are looking for to find the correct bit of legislation.

[Markdun]

Kasper, I agree that your analysis is correct about RAa jurisdiction.  Moreover, in law, only a court can impose a penalty. The police, or CASA, similarly cannot impose a penalty.  If the legislation allows they can issue a person with an ‘infringement notice’ (a fine) and the person issued with the notice can agree to pay the fine.  But it is every person’s legal right to not pay the fine and require the police, or CASA, to take them to court and prove, as per George Pell, beyond reasonable doubt that they committed the offence.  Raa-Aus does not have that legal power to take you to court (unless they can start a private prosecution).  In fact, I know of a case where a CASA prosecution failed (pre AUF days) because the person in CASA that authorised the prosecution didn’t have the delegated authority to do so.

 

where I think your argument comes apart is Raa-aus, does have a form of contract with members.  This is the essence of corporations.....the members (equity holders) essentially have a contract with the other members as set out in the corporation’s constitution or M&A of association.  This is what a member actually means (unlike gyms where ‘member’ really means customer). So while the RAa-Aus may go whistle Dixie in regards to imposing fines or periods of imprisonment, it probably can suspend a person’s flying privileges etc, refuse to register an aircraft etc.  The ‘rule of law’ is more than just criminal, it also includes contract, torts, and equity (something our PM needs to learn). Of-course, if the person couldn’t care less about their membership and flies contrary to the tech manual etc that’s their business.  Arguably, if Ra-Aus is aware, they could dob the person in to CASA.  But it seems the precedent set by the reluctance of churches to dob in paedophiles or our current prime minister to dob in rapists or ministers illegally spending our money, it would perhaps be prudent if they kept shtum.

[kasper]

And I’ll play devils advocate and ask if anyone has sighted any member disciplinary policy and procedure as required in the constitution 17.2 ...

 

no policy or procedure published means it’s going to be very difficult to impose anything under the constitution on members  ... employees have a published disciplinary policy but not members ....

 

equally the employees and volunteers have a procedure and policy for counting votes but the directors have failed to publish the election policy as required by the constitution 

 

I really do hope that the new CEO focuses on members and the constitution for a year or two as the focus for the past few has not been on it. 

[Markdun]

Jasper, no debate from me on that.  I just can’t fathom why the Ra-Aus seems to think shmoozing up to industry or providing services and information to the government is in members’ interests.  It’s not our role or objective to be well regarded by industry, CASA, or the Government - except to the extent doing so advances members’ interests.  How much do we charge CASA or the department for the information about members the Ra-Aus provides them?  I don’t give a flying fig what AOPA, the SAAA, Qantas etc think of us....I just want to build, maintain and fly with the minimum of stupid ‘rules’ with no evidentiary basis of need.  I’m an adult and I don’t need some patronising father figure to protect me from myself. I note an increasing number of long term members giving up; some flying outside the rules.  How stupid is the medical requirement when you hit 70 (I think).  The ‘standard is the same, ie. fit to drive a motor vehicle, but if you are old you have the added requirement of proving it.  The only justification for such a rule would be evidence that older people are more likely to lie.  Where’s the evidence for that?  The staged inspections requirement in building is much the same.  Where is the evidence of a problem, when it remains that the vast majority of incidents are pilot related?   The Airservices class E airspace proposal was, and remains, a proposal without a clear objective or a problem to be addressed (except perhaps being a justification for Airservices expanding its infrastructure spending (ssr and ADSB coverage) to be recovered by increased charges on a diminishing fleet).  But ten years or so ago Ra-Aus objected to a proposal that would have seen ADSB out devices like SkyEcho provided free to all of the Ra-Aus fleet (paid for by commercial airlines) that would have made more airspace available to us.  Go figure. Rant over....now why has my Hall effect RPM sensor started giving me intermittent higher readings in the Corby, and what’s next on building a canopy mold for a new acrylic molded canopy for the old Cygnet?

 

[turboplanner]

11 hours ago, Markdun said:

Kasper, I agree that your analysis is correct about RAa jurisdiction.  Moreover, in law, only a court can impose a penalty. The police, or CASA, similarly cannot impose a penalty.  If the legislation allows they can issue a person with an ‘infringement notice’ (a fine) and the person issued with the notice can agree to pay the fine.  But it is every person’s legal right to not pay the fine and require the police, or CASA, to take them to court and prove, as per George Pell, beyond reasonable doubt that they committed the offence.  Raa-Aus does not have that legal power to take you to court (unless they can start a private prosecution).  In fact, I know of a case where a CASA prosecution failed (pre AUF days) because the person in CASA that authorised the prosecution didn’t have the delegated authority to do so.

 

where I think your argument comes apart is Raa-aus, does have a form of contract with members.  This is the essence of corporations.....the members (equity holders) essentially have a contract with the other members as set out in the corporation’s constitution or M&A of association.  This is what a member actually means (unlike gyms where ‘member’ really means customer). So while the RAa-Aus may go whistle Dixie in regards to imposing fines or periods of imprisonment, it probably can suspend a person’s flying privileges etc, refuse to register an aircraft etc.  The ‘rule of law’ is more than just criminal, it also includes contract, torts, and equity (something our PM needs to learn). Of-course, if the person couldn’t care less about their membership and flies contrary to the tech manual etc that’s their business.  Arguably, if Ra-Aus is aware, they could dob the person in to CASA.  But it seems the precedent set by the reluctance of churches to dob in paedophiles or our current prime minister to dob in rapists or ministers illegally spending our money, it would perhaps be prudent if they kept shtum.

Somewhere in there I think you may have pointed out where the powers come from.

 

There are thousands of Incorporated Associations drawng up rules, enforcing them and issuing sanctions on a regular basis. I was an Appeals Tribunal Chairman for several years and heard a lot of cases, and made decisions, usually on Disqualifcations of Licence for periods from a month up to two years, so issues that had a serious effect on the member involved. My position would have been providing Natural Justice. On a few occasions the Appellant would be represented by a lawyer. The decisions were always based on the Associations Rules and I never had a lawyer question a decision.

 

So maybe its the contract you mention.

 

The water is cloudy with RAA's history because, although RAA Inc. was set up as a Self Administering Organization, it never put the administration, compliance and enforcement policies for what it did into effect. CASA gave a specific nudge to RAA in 2010, and I pointed this out on this forum a couple of years later, but there was still no response. Incorporated Associations were specifically set up to handle self-administration, but members went along with dumping the Incporporated Association, listening to a few uninformed people who were spruiking the line that we were too big to be managed like a cricket club, and formed the current Limited Company. It hasn't picked up these obligations either.

 

As a result we sit out there exposed as Kasper has pointed out, facing harsh penalties for things we should have had rules and sanctions in place for.

 

Kasper describes RAA as toothless, but that's what you are if you are a Self Administering Organisation and don't make operational Rules.

 

As someone once said "If you don't have a target, how are you going to hit the bullseye.

[Roscoe]

On 12/04/2021 at 9:03 PM, jackc said:

The more I read of this, the more confused I become, have the changes to the tech and ops manuals really made any difference?  Has anything been made simpler?   We can’t buy printed copies of these manuals which makes things more problematic,  trying to mark pages in digital copies and quickly refer between sections is a nightmare.

I always look for printed books on anything that is regulatory.

Just imagine IF ERSA was digital only? 
if RAA and CASA want people to comply with regs etc, they must facilitate relatively easy interpretation of those regulations.
Right now I an not seeing it........

I have printed copies of the Manuals.

Got them a few months ago from the RAA Shop.

I assume the amended Manuals will be available in the same way?

Edited April 14, 2021 by Roscoe

[jackc]

8 minutes ago, Roscoe said:

I have printed copies of the Manuals.

Got them a few months ago from the RAA Shop.

I assume the amended Manuals will be available in the same way?

I tried on a number of occasions to buy printed copies, told not available but given recent announcement of changes, maybe they did not want to print any more?
Still no idea when new editions available, either.
RAA needs to smarten up a bit and keep members in the loop as to what is going on......

 

[Roscoe]

On a quick read of the Amendments, am I correct in assuming that a LAME automatically gets L2 approval?

[kasper]

32 minutes ago, Roscoe said:

On a quick read of the Amendments, am I correct in assuming that a LAME automatically gets L2 approval?

Not clear.

 

Yes - the LAME gets a perpetual L2 approval ... that means that they do not face renewal of L2 through RAAus 

No or Maybe - Once the LAME approval expires/is cancelled then the L2 ceases so in effect its not perpetual (despite that being the wording in the Tech manual)

No or Maybe - it USED to be that to use the L2 granted under the Tech manual on the basis of the LAME authority you still had to be and maintain membership of the RAAus ... membership was also the only way to have the LAME fall under the Tech Manager of RAAus ... that's now not clear at all.

 

So Rosco, if you are a LAME call the tech manger to clarify as its not clear.

 

And for anyone using a LAME/L2 to maintain their aircraft where that maintenance must be L2 I would also question the tech manager ... last thing I would want to find out the hard way is if I had an airframe online at a flight school under LAME maintenance that was not within the Tech Manual because that likely means my insurance for hull is invalid ... 

[Roscoe]

9 minutes ago, kasper said:

Not clear.

 

Yes - the LAME gets a perpetual L2 approval ... that means that they do not face renewal of L2 through RAAus 

No or Maybe - Once the LAME approval expires/is cancelled then the L2 ceases so in effect its not perpetual (despite that being the wording in the Tech manual)

No or Maybe - it USED to be that to use the L2 granted under the Tech manual on the basis of the LAME authority you still had to be and maintain membership of the RAAus ... membership was also the only way to have the LAME fall under the Tech Manager of RAAus ... that's now not clear at all.

 

So Rosco, if you are a LAME call the tech manger to clarify as its not clear.

 

And for anyone using a LAME/L2 to maintain their aircraft where that maintenance must be L2 I would also question the tech manager ... last thing I would want to find out the hard way is if I had an airframe online at a flight school under LAME maintenance that was not within the Tech Manual because that likely means my insurance for hull is invalid ... 

Thanks Kasper

No, I am not a LAME but in the past I have had LAME,S tell me they cannot do work on my Aircraft because they do not hold L2 quals and are not RAA members.

I have recently obtained L1 quals, so now I can get a LAME to do work that i am not confident or competant to perform, and sign it off myself.

For the record, I own a LSA Factory built aircraft not used in a Flying School.

The only area which remains unclear, is if the LAME has to be an RAA member, which hasnt been spelt out.

I trust my interpretation is correct.

[kasper]

36 minutes ago, Roscoe said:

Thanks Kasper

No, I am not a LAME but in the past I have had LAME,S tell me they cannot do work on my Aircraft because they do not hold L2 quals and are not RAA members.

I have recently obtained L1 quals, so now I can get a LAME to do work that i am not confident or competant to perform, and sign it off myself.

For the record, I own a LSA Factory built aircraft not used in a Flying School.

The only area which remains unclear, is if the LAME has to be an RAA member, which hasnt been spelt out.

I trust my interpretation is correct.

Can't offer anything on the quality or trust on your interpretation ... its down to the tech manual being unclear in this area so pretty much we are left to ask RAAus tech what is the case. 

[jackc]

RAA will need to give written answers to questions.  ‘Yeah mate, it’s all good’ over the phone wont cut it.....

They need to offer written interpretations on questionable areas of both manuals.

Addendums will be required......

 

[Thruster88]

2 THE PROCESS
2.1 To apply for a Level Two Maintenance Authority a person must:
(a) be an RAAus member;

 

My reading of the tech manual simply says a LAME meets the requirements for L2.  They still have to go thru the process.   

[Roscoe]

4 minutes ago, Thruster88 said:

2 THE PROCESS
2.1 To apply for a Level Two Maintenance Authority a person must:
(a) be an RAAus member;

 

My reading of the tech manual simply says a LAME meets the requirements for L2.  They still have to go thru the process.   

I will email RAA and seek clarification.

 

[Blueadventures]

1 hour ago, Thruster88 said:

2 THE PROCESS
2.1 To apply for a Level Two Maintenance Authority a person must:
(a) be an RAAus member;

 

My reading of the tech manual simply says a LAME meets the requirements for L2.  They still have to go thru the process.   

I’d expect LAME that wants L2, become member of RAA, submit L2 application, gain appropriate ratings. Being a current LAME don’t require to reapply every 2 years. (Bit like GA bfr covers requirement for RAA bfr). I’d expect that if LAME quals cease any time after first 2 Years then L2 would expire and that person could reapply for L2 and would be renewed if meet requirements. I’m keen to hear Roscoes reply / clarification from RAA tech.  Above is my not recently researched opinion. Cheers.

[Roscoe]

1 hour ago, Blueadventures said:

I’d expect LAME that wants L2, become member of RAA, submit L2 application, gain appropriate ratings. Being a current LAME don’t require to reapply every 2 years. (Bit like GA bfr covers requirement for RAA bfr). I’d expect that if LAME quals cease any time after first 2 Years then L2 would expire and that person could reapply for L2 and would be renewed if meet requirements. I’m keen to hear Roscoes reply / clarification from RAA tech.  Above is my not recently researched opinion. Cheers.

Have Emailed RAA tonight. Will post reply when received. 

[slb]

If they don’t have to renew every two years as the L2s do, then it would rely on RAA checking with each LAME as to whether they are still currently employed each year which I doubt they do or the LAME informing RAA if they no longer meet the requirements which I doubt they do. 

Edited April 14, 2021 by slb
Formatting error

[Roscoe]

Ok here is the reply I received today

A MINIMUM NON FLYING MEMBERSHIP IS TO BE MAINTAINED WITH RAA for an L2

The question i asked  was if a LAME had to be an RAA member to act as an L2

[old man emu]

49 minutes ago, Roscoe said:

i asked  was if a LAME had to be an RAA member to act as an L2

If you go back the very beginning to the bit about RAAus being the administrator of all things to do with maintenance, then the RAAus has the call on who can maintain an aircraft under the RAAus umbrella. The tech manual says that a person carrying out maintenance has to have approval to carry out maintenance at the level they wish to be. It also says that to be approved at L2 by RAAus a person needs to be a member of RAAus as approval to carrying out maintenance at an L2 level is a benefit of membership. 

 

Those LAMEs who decide for whatever reason to regularly maintain aircraft under the administration of the RAAus will become non-flying members. The cost of that membership (~$120) is insignificant if there is a good flow of work from operators of RAAus administered aircraft.