[Peetwo]

CM on a mission with CASA AvMad: Part II 

Interesting discourse from Clinton McKenzie on the UP, in regards to 'CASA delays in granting medicals - is our old certificate kept alive?' 

From here:

Clinton McKenzie

Follow up correspondence today.

This to Ms Spence:

Dear Ms Spence

More than 10 working days have passed since I sent my letter to you about CASR Subpart 11E and medical certificates. I request that you at least acknowledge receipt of my letter. (My apologies if receipt has already been acknowledged and I’ve overlooked the acknowledgement.)

Regards

This to the ‘Guidance Centre’:

As more than 15 working days have passed since I sent my clarification question, I seek an update on progress. For convenience, here is the clarification question and my reasons for the question set out in my email of 1 August 2023:

What provision of CASR results in flight training certificates issued under Part 141 ceasing after a particular period, or gives CASA power to issue flight training certificates issued under Part 141 with limited duration?

I have searched Part 141 for any provision to that effect, to no avail. I also note that even though CASR 11.010(3A) says that Subpart 11.BA “contains rules about granting authorisations, including the duration of, and the imposition of conditions on, authorisations”, no provision of Subpart 11.BA that I can find deals with the duration of authorisations. There is, for example, a provision dealing with when an authorisation comes into effect – CASR 11.065 – but I cannot find a provision of Subpart 11.BA dealing with when an authorisation expires or ceases to be in effect or operates for only a specified duration. (I do hope CASA would not seek to rely on the mere ‘note’ under CASR 11.065 as the source of any power to impose time limits on authorisations.) My apologies if I’ve overlooked the operative provision.

Regards

Meanwhile, I note that according to CASA’s published service delivery statistics, the percentage of medical certificate services completed within target are:

Class 1: 55%

Class 2: 47%

Class 3: 44%

This highlights why the question whether CASR 11.140 applies to medical certificates is so important.

(Medical certificate service performance doesn’t win the prize for the most abysmal against targets, though. First, Second and equal Third Prize are won by Domestic Initial Licence – RPL (16%), Domestic Initial Licence – PPL (36%) and Domestic Initial Licence – CPL 44%.)

(For reference here is CASR 11.140: http://www5.austlii.edu.au/au/legis/cth/...1.140.html)

Next Su_Spence finally responds CM's queries:

Clinton McKenzie

PS: Ms Spence has now responded, to the effect that the question whether CASR 11.140 applies to medical certificates is still being reviewed.

CM then follows up personally with Dr A... :

Clinton McKenzie

I sent an email to Jonathan Aleck today, in the following terms, after a discussion on Monday (28 Aug 23). The content is a good SITREP. (I note that I said to Jonathan, in advance of our discussion, that I would not treat the content as confidential, and the discussion proceeded on that basis.)

Hi again, Jonathan

Thanks for the discussion on Monday afternoon (28 August 23). My understanding is that you have been asked by the CEO/DAS for advice on the question whether CASR 11.140 applies to medical certificates. I look forward to being informed by the CEO/DAS of CASA’s position after the CEO/DAS has had an opportunity to consider your advice.

In the interim, are you able to explain the ‘status’ of the position stated by CASA’s ‘Regulatory Guidance’ staff? We are apparently now in circumstances in which the CEO/DAS could conceivably settle on a position different than that stated categorically (twice) by ‘Regulatory Guidance’ staff in response to my question and follow-up. Do ‘Regulatory Guidance’ staff communicate with CASA’s authority?

Apart from my view that I consider the position expressed by CASA’s ‘Regulatory Guidance’ staff to be dubious as a matter of statutory interpretation, I wrote to the CEO/DAS about CASR 11.140 because I’m mindful of reports that CASA told the ATSB, in the course of the latter’s investigation of the evolution of the OLS at Essendon, that written confirmation given to the operators of Essendon by a CASA officer as to the interpretation of the applicable rules was wrong and had no legal validity. I hasten to add that I realise this is just one (hearsay) side of what will almost certainly be a story with at least three sides. Nonetheless, I’m disconcerted by any prospect of CASA subsequently resiling from the substance of written communications, on serious matters involving the interpretation of civil aviation safety rules, sent by CASA staff in response to questions about those matters. That’s why I said, in my email to you of 25 August 23, that: “I’m surprised that the DAS’s/CEO’s response [to my letter of 7 August 23] was anything other than to confirm what the ‘Guidance Centre’ has already told me.”

In any event, I reiterate my thanks for the discussion and that I look forward to being informed by the CEO/DAS of CASA’s position after the CEO/DAS has had an opportunity to consider your advice.

Regards

 
MTF...P2