Jim McDowall

Nick, gliding is a good example of how organisations forget what their real role is and end up pissing a lot of people off. In fact in the early days of RA most of the members were pissed off ex-GFA members. GFA is a dying organisation - visit any gliding club and get an idea of the age profile which tells the story - there is no renewal. And then there is there endless rule making - talk to any commercial glider maintainer to get an idea of how erratic and confused their maintenance regulation is. I am a member of the EAA in the US and it has regularly refused to get involved in the regulatory aspect of aviation, figuring that it can only be a fierce advocate for recreational aviation by not sullying its reputation by being a hand maiden of the FAA. BTW there is no Part 149 in the FAA regs and our regs are supposed to be harmonised with the US FAA. RAAus is not the problem - the problem is a model of regulation that diffuses responsibility and that is really regulation on the cheap. A better solution would be if all the sports aviation bodies owned an organisation that sold services (ie everything that RAAus does now) to individuals, those individuals choosing if membership of the body that is free to advocate on that branch of aviation that most interests them. In other aspects of life most of us oppose compulsory unionism - why would you not oppose compulsory membership in this instance? Why has union membership fallen to historic lows? The recent Royal Commission has shown why people have marched away from the unions. They grew fat, greedy, lazy and forgot who they were supposed to represent.

Perhaps the Commonwealth Ombudsman can be of assistance.

But is that sub paragraph within the law? And does CASA have the power to approve something that it cannot do itself?

In a letter to Senator Xenophon on my behalf, Johnathaon Aleck says in response to a question: "4. Do these organisations have oversight of all participants in the activity (for example,does the Gliding Federation of Australia have oversight of all gliding participants)? Do they also have oversight of non-members? There is no legislative requirement that every person wishing to participate in an activity currently overseen by an RAAO must do so under the auspices of that RAAO. Any person who is able and willing to comply with all of the otherwise applicable provisions of the civil aviation legislation governing those activities (i.e,, those provisions of the regulations from which persons affiliated with an RAAO are exempted from complying) may do so. Alternatively, a person (or a group of persons) who is (are) able to satisfy CASA that they are capable of exercising, in respect of themselves, the full range of safety-related oversight an existing RAAO is able to provide, may qualify for recognition as a self-administering entity, along the lines reflected in the CAO Part 95-series of exemptions. In addition, CASA must be satisfied that the co-existence of two or more such ‘organisations’ (even if the latter might constitute an organisation of one person) does not of itself pose unacceptable safety risks." There is in fact a legislative requirement for every person wishing to participate in an activity currently overseen by an RAAO must do so under the auspices of that RAAO. The CASR's provide that, in general, ultralight aircraft are “unregistered”. (If an aircraft is exempt from the CASR's then the provisions of the CASR relating to aircraft registration – Part 47- do not apply.) CIVIL AVIATION SAFETY REGULATIONS 1998 - REG 200.025 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 further: CIVIL AVIATION SAFETY REGULATIONS 1998 - REG 200.030 Flying unregistered aircraft--offence A person commits an offence if: (a) the person pilots an unregistered Australian aircraft; and (b) a sport aviation body administers aviation activities in the aircraft; and © the person does not: (i) hold a pilot certificate granted by the sport aviation body ; and (ii) operate the aircraft in accordance with the sport aviation body's operations manual. It is not possible, for example, to hold a valid pilot certificate issued by RAA_Aus under their Operations Manual approved by CASA (see para 2.01 of the manual) without being a member of RA_Aus. (This is common to all such Manuals). This raises an important question. If the Regulations say : (1) the person holds a pilot certificate granted by a sport aviation body that administers aviation activities in the aircraft; and (2) the person operates the aircraft in accordance with the sport aviation body's operations manual. this does not create a requirement to be a member of that organisation. The CAO's reflect this position. As such how can CASA approve an operations manual that goes beyond the requirements of the law? In effect, the CASA is permitting private organisations to make law, something no parliament should do and our parliament has not done. Note also that the term “sports aviation body” is used. Nowhere in the legislation will you find the term Recreational Aviation Administrative Organisations (ie RAAO's). The legislation defines “sports aviation bodies” as defined in Civil Aviation Regulation 2: "sport aviation body " means: (a) Recreational Aviation Australia Inc.; or (b) the Australian Ballooning Federation Ltd; or © the Gliding Federation of Australia; or (d) the Hang-gliding Federation of Australia; or (e) the Australian Parachute Federation; or (ea) the Australian Sports Rotorcraft Association Inc; or (f) a body established in a Contracting State to administer sport aviation in that State. The term Recreational Aviation Administrative Organisations (ie RAAO's) is an invention of CASA without legislative support. The proposition of Alecks that CASA could approve a new RAAO neglects to mention that this will require a change in the regulations. This amplifies the scant regard that CASA has for the law. Regulations are not made by CASA. It is worth noting the special position of the Gliding Federation Of Australia as its aircraft fleet is VH registered – in other words on the Australian Aircraft Register and the exemptions of CASR 200 have no application to gliders. Alecks statement that “There is no legislative requirement that every person wishing to participate in an activity currently overseen by an RAAO must do so under the auspices of that RAAO.” only has application to the gliders as the exemptions (and related strictures) of CASR 200 do not apply to gliders. Aleck is correct to this extent. CAO 95.4 contains a get out clause (5(a)(ii)) that is, in practical terms, in-operable: 5 General conditions 5.1 An aircraft to which this Order applies must not be operated except: (a) by an individual: (i) who is a member of the GFA; or (ii) who has been given written approval by CASA to operate that aircraft; and (b) in accordance with: (i) in the case of an individual referred to in sub-subparagraph 5.1 (a) (i) — the rules, orders, directions, standards, maintenance and operational procedures contained in the GFA Operational Regulations and other applicable manuals and written directives of the GFA; or (ii) in the case of an individual who has been given a written approval under sub-subparagraph 5.1 (a) (ii) — the conditions included in that approval; and © by a pilot who: (i) in the case of an individual referred to in sub-subparagraph 5.1 (a) (i) — is qualified in accordance with the standards specified in the GFA Operational Regulations, subject to the limitations which are specified in the GFA Operational Regulations as being appropriate to the qualification held by the pilot; or (ii) in the case of an individual who has been given a written approval under sub-subparagraph 5.1 (a) (ii) — is a pilot qualified as mentioned in the approval, subject to the limitations which are specified in the approval. I tried to get an approval from CASA. They outlined the provisions of an approval that they would give but required me to make a formal application and pay an in determinant fee. I did not proceed as their initial indication of the conditions that would be attached to an approval would have been impossible to comply with.

Somehow I think he hasn't. Whilst something exists in the Australian psyche that creates a need to belong to an organisation that will somehow absolve us our personal requirement to stand up for something, responsibility for our governance will remain diffused in a myriad of organisations, bureaucrats and well meaning but poorly equipped "representatives". I seriously think that the Australian culture has been reduced to the status of ineffective lemmings.

From: http://www.claytonutz.com/publications/newsletters/queensland_energy_and_resources_insights/20050831/did_you_know-whats_the_difference_between_deeds_and_agreements.page Are there differences between deeds and agreements? It is a basic principle of modern contract law that in order to have a binding contract there must be: offer and acceptance; an intention to be legally bound; and consideration (this stems from the idea that the promises or obligations must be part of a "bargain" between the parties and the parties must show they "bought" the promise by doing some act in return or providing a counter-promise). The major difference between a deed and an agreement is that there is no requirement for consideration in order for the deed to be binding. In short, the lack of the requirement of consideration is overcome by the idea that a deed is intended by the executing party to be a solemn indication to the community that she or he really means to do what he or she is doing. The CASA document is clearly not a deed as there is consideration. There clearly has been offer and acceptance. There is a clear intention to be legally bound (eg RAAus must ....... and if it does not CASA may withdraw funding - plus implied "threat") But either way both deed and agreements are contracts. (The document is titled "Deed of Agreement") Your statement "A deed is a contract but a contract is not a deed." is almost correct as a contract may not be expressed as a deed as there are expressions to be used in drafting an agreement that make it a deed and then there is the consideration thingy. In any event 97AB only requires "a contract" which can be a deed or an agreement.

Don, Have a look at: http://www.claytonutz.com/publications/newsletters/queensland_energy_and_resources_insights/20050831/did_you_know-whats_the_difference_between_deeds_and_agreements.page Especially note: "and today a deed is a special type of contract or binding commitment or obligation and is regarded as the most solemn act that a person may perform which: passes an interest, right or property; creates an obligation binding on some person; or amounts to an affirmation or confirmation of something which passes an interest, right or property." Jim

Refer to this definition: DEED, conveyancing, contracts. A writing or instrument, under seal, containing some contract or agreement, and which has been delivered by the parties. Co. Litt. 171; 2 Bl. Com. 295; Shep. Touch. 50. This applies to all instruments in writing, under seal, whether they relate to the conveyance of lands, or to any other matter; a bond, a single bill, an agreement in writing, or any other contract whatever, when reduced to writing, which writing is sealed and delivered, is as much a deed as any conveyance of land. 2 Serg. & Rawle, 504; 1 Mood. Cr, Cas. 57; 5 Dana, 365; 1 How. Miss. R. 154; 1 McMullan, 373. Signing is not necessary at common law to make a deed. 2 Ev. Poth. 165; 11 Co. Rep. 278 6 S. & R. 311.

A deed is a contract

Don, maybe all not for reward day VFR. Can't agree more about the rest - see the EAA's victory in respect of medicals in the US and even the LAMEs cant work out maintenance for low end aviation. Tell me any other trade where you lose the capacity to use your trade if you can't work more than 6months in 2 years. Especially when you are working on aircraft built before you were born let alone during your absence from the job.

Section 97AB is about conflict of interest. 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. (Thus RAAus is a person who provides services to CASA under a contract with CASA and a person who, under a contract with CASA, provides services to the public on CASA’s behalf ". CASA also issues delegations to employees and other functionaries. 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 CAO's 95.10,95.32,95.55 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)))

Perhaps RAAus exists for the benefit of CASA who are not that interested in managing the bottom end of aviation? And they get out of it on the cheap by throwing scraps to RAAus - the $100k they send us does not in any way match the cost of providing the things they require and turn a blind eye to the resultant contravention of S97AB of the Act.

DWF, section 181 of the Corporation Law provides similar protection, but there will be occasions when the members interest will not have primacy. At some time in the future the organisation will become a part 149 body and receive delegations from CASA. (These are currently held by individuals associated with the organisation) . It is possible that CASA may make demands of the organisation that are not in the interests of members and as a carrot throw some money at the organisation. If the organisation needed funds at the time to settle the demands of a creditor whose interests come first? In this situation the directors must take the money and screw the members interests. Yes, prudent management can avoid this scenario. There is an old legal saying pertinent to drafting documents - "if you can imagine it happening, provide for it" - it is the things you cant or dont imagine that cause the problems.

Hey turbo "Strategy can compensate for lack of talent but talent never compensates for lack of strategy." provided the strategy is correct!

It is a matter of law that associations (incorporated or otherwise) exist for the benefit of members - that is what distinguishes associations from companies.

This why we need to embrace Experimental category: CIVIL AVIATION SAFETY REGULATIONS 1998 - REG 201.003 Commonwealth and CASA not liable in certain cases Neither the Commonwealth nor CASA is liable in negligence or otherwise for any loss or damage incurred by anyone because of, or arising out of, the design, construction, restoration, repair, maintenance or operation of a limited category aircraft or an experimental aircraft, or any act or omission of CASA done or made in good faith in relation to any of those things. Yes, there may be some liability issues associated with those issuing experimental certificates but these can be managed and also if CASA is not liable how can its delegate be liable?

Andy and Don, what I am arguing for is a paradigm shift in the approach. At the moment CASA delegates to individuals not organisations (which by their very nature are apt to diffuse responsibility, especially those such as RAAO's). The experimental end of GA is managed this way where delegates such as Stephen Dines issue experimental certificates. There is no reason why all recreational aircraft cannot be experimental aircraft and thus treated in the same way as experimental aircraft in the US (after all our regulatory system is supposed to be harmonised with the FAA's). Yes, there may be existing regulatory issues to be dealt with and the SAAA's stupid intervention into maintenance of experimental aircraft needs to be dispensed with, but there is another way. If RAAus is only prepared to defend the existing paradigm, then it it is no better than any local government council and we all now what a crock that is where the councils are, at the end of the day, not prepared to bite the hands that feed them (State and Federal Governments). eg the Jabiru fiasco. Who is going to argue for recreational aviation in the same way the EAA has advocated for the recreational/experimental sector in the US? Don, decending into a discussion about "cowboys" is not at all helpful. In every facet of life people break the law and there are systems to deal with them - we do not need RAAus to be the policeman. After all we all airlines, GA, Rec and defence all share the same air according to a common set of rules and CASA exists to administer those rules. The moment we fly independently of an instructor we are, in all practical terms, beyond the reach RAAus's system and subject to the rules of the air. Yes, external observers may make reports, but with all legal systems, the rules of evidence apply lest anarchy break out. So far as I see it, this discussion is dominated by those who can only see perpetuation of the existing as the future model. Perhaps it is time to "think outside the square". I fear that if we don't we (RAAus) will end up like the GFA - drowning in a paper war of its own making - and losing relevence to the modern world.

Don, sure you didn't mean "controlling all forms of aviation that are not for reward" - surely RAAus is not meant to be a regulator - if so, which organisation will be our advocate? Can't be both.

The CAO says "registered with the RAA" which is at variance with the CASRs. In the same way as regulations made under an Act cannot be at variance to an Act, a CAo cannot be at variance to the legislation under which it is made. CASA cannot require something that it cannot do itself ie register an aircraft that is exempt from registration so that part of the CAO is made without power. This whole matter is about CASA acting without a head of power something which is all too common in all forms of public administration..

My point is that there is no CASA enforceable requirement for a RAAus aircraft to be registered so they cannot demand that registration be included in the ops manual. Further what was all the registration fiasco about? Yes they are Australian aircraft - defined in the Civil Aviation Act I think. Further, CASA should not approve an Ops manual with a registration requirement as the law does not require it.

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

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.

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)))

So some of their relatives work for CASA? The publication is a "handbook" not a properly constructed set of rules within a legal framework.

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