[Peetwo]

Attempted embuggerance & a Leopard's spots -

Reference quotes:

Following on from the recent additions from the Fort Fumble PR (retch ) machine...

Come on Wingnut you know KC speaks in plain English... Get rid of the witch doctor, employ Mike Smith ASAP to reform CASA; adopt either of the NZed or US plain English (easy to read & understand) regulations, then stand back and watch the accolades roll in for yourself, Murky and the minister, as the industry flourishes and contributes greatly to 'jobs, growth' and the Aussie GDP -

Dr Voodoo & Wodger on the fine art of spinning BS on RRP -

The following puff piece by FF almost perfectly highlights how completely out of touch with reality Dr Hoo-doo-yoo-doo-as-I-say and Wodger-week-as-piss is when it comes to first  World aviation regulation

Caution: BYOB will be required - }

How does anyone in their right mind expect us to believe in a witchdoctor who brought us over 4000 notified differences to ICAO SARPs and 100's of thousands of extra prescriptive pages of totally unreadable regulations for the better part of 3 decades? - UDB!

...it would appear that another 'Ghost who walks' from the Fort Fumble stables is quick to water down and obfuscate some of the less subservient members of the IOS and Alphabet Soups. Courtesy of the Yaffa.. :

..."CASA has consulted comprehensively with the aviation community on the introduction of ADS-B over more than nine years, including with AOPA," the statement says.

"It was agreed by aviation industry representatives, including AOPA, that ADS-B would be phased in over a three year period commencing in December 2013.

"AOPA wrote to CASA in 2012 and congratulated CASA on its consultation process for ADS-B implementation, including the mandate for all IFR aircraft to be fitted by February 2017.

"The recent changes announced by CASA to the ADS-B fitment deadline for private operations was a positive initiative developed in response to feedback from the general aviation community. CASA listened to this feedback and developed a package of changes that maintains operational safety while allowing more time for private IFR operators to fit the equipment.

"This initiative provides relief to private operators and will allow for the orderly fitment of the remaining IFR aircraft."

CASA also explained why the ADS-B deadline extension was limited to IFR aircraft operated in the private category only.

"The ADS-B extension does not include commercial operations as the fitment rate is already very high. Eighty-nine per cent of IFR flights are already conducted in ADS-B equipped aircraft, with this predicted to rise to 95% by February 2017.

"CASA thanks the many IFR operators and more than 300 VFR operators who have already fitted ADS-B and are reaping the safety and operational benefits of the equipment."

AOPA Australia has called on CASA to meet with them in Canberra next week to further discuss the issue...

Read more at http://www.australianflying.com.au/lates...g7DlUKh.99

From the CCC (Carmody & CAsA caper) above related stories this week, it would seem that Wingnut has issued some sort of edict to appear to be a sharing, caring, smaller "R" regulator in a typical cynical attempt to placate, prior to Xmas, certain sections of the IOS.

However the trouble is a Leopard can't change it's spots: a) As clearly highlighted by the Dr A - guru of totally unreadable & unusable big "R" 'strict liability' regulations - tongue in cheek performance in the spin & obfuscation FF PR video...   

..or; b) in the FF weasel words quoted by Oz Flying to cover up the fact that AOPA had been out-manoeuvred & whitewashed by a typical 'zero effect' exemption on the 2017 ADS-B mandate...

Which brings me to another classic example of how the more CASA profess they have embraced the findings and recommendations of the ASRR, the more evidence there is that they and the Department are merely paying lip service and playing for time (obfuscating) any real proactive actions on the ASRR..

Keeping in mind that Dr A has been demoted to manager of LSD, the following is a clear example of the lengths CAsA will still go, with malice & aforethought, when it comes to attempted embuggerances of small inconsequential individuals or businesses.

Reference from AAT: Bellamy and  Civil Aviation Safety Authority  [2016] AATA 956 (29 November 2016)

Quotes from Egon Fice decision...

1.Mr Michael Bellamy was the holder of a Private Pilot Licence – Aeroplane Category (PPL). That licence was issued to him on 13 August 2002. Mr Bellamy was also the registration holder of a McCulloch J2 gyroplane bearing the Australian registration mark VH-MBY.
2.On 16 July 2010 Mr Bellamy was conducting ground runs along runway 17/35 at Bendigo airport. On one of those runs he lost control of the aircraft which rolled over on its side causing the rotor to strike the runway and effectively destroy the aircraft. Mr Bellamy was unharmed.
3.After conducting an investigation into the accident, CASA initiated proceedings in the Bendigo Magistrates’ Court claiming that Mr Bellamy was in breach of s. 145.1 of the Criminal Code Act 1995 (the Criminal Code) which relevantly provides:

(1) A person commits an offence if:

(a) the person knows that a document is a false document and uses it with the intention of: (i) dishonestly inducing another person in another person’s capacity as a public official to accept it as genuine; and
(ii) if it is so accepted, dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly influencing the exercise of public duty or function; and

(b) the capacity is a capacity as a Commonwealth public official.
Penalty: Imprisonment for 10 years.

4.Mr Bellamy was also charged with reckless operation of aircraft as described in s. 20A of the Civil Aviation Act 1988 (Civil Aviation Act). Section 20A provides:


Reckless operation of aircraft

(1) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the life of another person.

(2) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.

5.The second charge was in fact brought under s. 29 of the Civil Aviation Act which provides that the owner or operator of an aircraft commits an offence if he or she operates aircraft or permits aircraft to be operated and the operation of the aircraft results in contravention of s. 20A(1).

6.Mr Bellamy was found guilty of the false document offence but not guilty of reckless operation of an aircraft offence. Nevertheless, CASA issued Mr Bellamy with a show cause notice dated 15 July 2015, providing Mr Bellamy with the opportunity to respond. In a letter dated 16 March 2016 CASA informed Mr Bellamy that it had determined that he failed in his duty as the holder of a PPL and that he was not a fit and proper person to be the holder of a PPL. Accordingly, CASA cancelled his PPL.

7.On 22 March 2016 Mr Bellamy lodged an application with the Tribunal seeking review of CASA’s decision to cancel his PPL.

---

CONCLUSION

122.Despite Mr Bellamy having had a very unfortunate experience in his attempt at restoration and testing his J2 gyroplane, I have found that was no evidence upon which CASA can soundly base a suspension of his PPL. All of the difficulties which Mr Bellamy encountered, including his conviction in the Magistrates’ Court, stemmed from his gyroplane involvement. I had no evidence before me that similar circumstances would arise in the future as far as his fixed-wing operations are concerned. Mr Bellamy did not blatantly ignore the advice given to him by CASA and he appeared to have made significant attempts to comply with all legislative requirements as they existed at the time, which were not as clear as perhaps they could have been. I have found that he is a fit and proper person to hold the PPL – aeroplane.

123.I find that the decision made by CASA on 16 March 2016 cancelling Mr Bellamy’s
PPL– aeroplane was not the preferable decision. I set aside that decision. Therefore, Mr Bellamy’s PPL – aeroplane remains valid and should be treated as never having been cancelled. CASA’s records regarding Mr Bellamy should be amended accordingly...

This bit going to the definition of 'reckless operation of an aircraft' is IMO important in context of the Fice decision:

63.CASA’s action in the Magistrates’ Court included a charge said to be brought under s. 29(1)(a) of the Civil Aviation Act which deals with offences in relation to aircraft. The particular subsection relied on by CASA as set out in the prosecution report appears to be incorrect. Section 29(1)(a) must be read together with subsection (b)(i) or (ii). It provides:

(1) The owner, operator, hirer (not being the Crown) or pilot of an aircraft commits an offence if he or she:

(a) operates the aircraft or permits the aircraft to be operated; and
(b) the operation of the aircraft results in:

(i) the use by the aircraft of an aerodrome in contravention of conditions specified under section 20; or
(ii) the aircraft being flown or operated in contravention of a provision of this Part (other than subsection 20A(1) or 23 (1)), or of a direction given or condition imposed, under such a provision.


64.Section 29(2) provides that strict liability applies to offences set out in (1)(b)(i) and (ii). That means, as far as a criminal prosecution is concerned, intent plays no part in determining culpability. It is assessed objectively.

65.An offence may also be committed in circumstances where the owner, operator or pilot of an aircraft operates the aircraft or permits aircraft to be operated and the operation results in a contravention of s. 20A(1) of the Civil Aviation Act (s. 29 (3)).

66.Section 20A provides1) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the life of another person.
(2) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.

67.This rather inelegantly phrased provision plainly has two limbs. The first is concerned with endangering the life of another person and the second is concerned with endangering the person, in the sense of the body of another person, or their property. The first limb, being a more serious offence, attracts a maximum penalty of 5 years imprisonment (s. 29(3)). The second limb, being less serious, attracts a maximum penalty of 2 years imprisonment (s. 29(1)).

68.It is also important to note that, having been charged under s. 29(1) of the Civil Aviation Act, Mr Bellamy could only have committed an offence if his operations of the J2 gyroplane offended the second limb of s. 20A, that is, endangering the body or property of another person. In other words, there was no claim that Mr Bellamy had endangered the life of another person.

69.The Magistrate dismissed the charge brought pursuant to s. 29(1) of the Civil Aviation Act. Nevertheless, the charge was noted in CASA’s Notice of Cancellation of Mr Bellamy’s PPL – aeroplane dated 16 March 2016. Despite the dismissal which, curiously, was referred to as a non-conviction of an offence, the notice of cancellation stated:

20. While you were not convicted of such an offence, I consider that your conduct on 16 July 2010 was also in breach of section 29(1) of the Civil Aviation Act 1988 (CAA), in that you were the owner, operator and pilot of the aircraft and the operation of the aircraft resulted in a contravention of section 20A(2) of the CAA, in that you operated the aircraft being reckless as to whether the manner of operation could endanger yourself or another person.


70.That statement is incorrect as a matter of law. A breach of s. 20A(2) of the Civil Aviation Act is not concerned with the operator endangering themselves. The expression the person in the second limb means the body of another person and is not a reference to the operator of the aircraft.

71.Further, with respect to CASA, this issue was tried by the Magistrate over a 10 day hearing period and the charge was dismissed. It is plainly incorrect and also inappropriate, in my respectful submission, for CASA to conclude that the operation of the aircraft on that occasion was reckless.

72.I appreciate that the standard of proof required to be established for conviction is different to that upon which CASA may act under reg. 269 of the CAR, the former requiring proof beyond reasonable doubt and the latter a finding on the balance of probabilities. Nevertheless, even on the lower standard of proof, CASA would have great difficulty in establishing a contravention of the Civil Aviation Act. CASA acknowledged this at paragraph 33 of its Notice of Cancellation. However, it relied on Mr Bellamy’s conduct in the course of his ground operations on 16 July 2010 for its finding that he failed in his duty as a PPL holder with respect to the safe navigation or operation of an aircraft
(reg. 269 (1)©) and that he was not a fit and proper person to be the holder of a PPL (reg. 269 (1) (d)).

73.Furthermore, CASA claimed Mr Bellamy’s reckless operation of the J2 gyroplane was conducted while he was not licensed to do so and that he knew of the dangers of such an action. As I have already pointed out above, while it is arguable that Mr Bellamy required a valid gyroplane pilot certificate to conduct those ground operations, that is not entirely clear. Given that Mr Bellamy relied significantly on AC 21.4(2) and in particular to the clauses in that document which state that a pilot must have a PPL with the appropriate endorsements to carry out initial flight testing on aircraft such as his, it also refers to the pilot conducting brake tests, engine operation and ground handling by conducting taxi tests before attempting flight operations. It does not suggest any qualification is required for those ground operations.

It is also worth reading paragraphs 74-98 (under 'Claimed inadvertent flight'):

89.Mr Cox also said in his witness statement that in his role as a Flying Operations Inspector, he had some experience as an accident investigator. He admitted he was not gyroplane qualified. He was asked by CASA to provide a safety comment regarding Mr Bellamy’s accident. Mr Cox did not indicate he had viewed the video.

90.Mr Cox was of the opinion that the activity conducted by Mr Bellamy on 16 July 2010 was high risk for the following reasons:
(b) Mr Bellamy probably had no experience at high-speed taxi and stopping operations with the J2 gyroplane;
© Mr Bellamy had no qualifications or evidence of competency on that aircraft type indicating an ability to recover from a high speed taxi situation where the main rotor was producing some lift;
(d) Mr Bellamy’s focus on what he wanted to do rather considering the associated risks;
(e) the willingness of Mr Bellamy to taxi the aircraft along the runway at close to or exceeding a recognised lift-off speed; and
(f) the proximity of the aircraft apron and parked aircraft.

91.With respect to Mr Cox, it is unclear what evidence he relied upon in order to arrive at the conclusions I have set out above. To begin with, he admitted to not being gyroplane qualified let alone having had any experience with the McCulloch J2. As I have already indicated, that gyroplane is something of a hybrid between a helicopter and a gyroplane. Furthermore, it is simply not possible from the video evidence to allow me to estimate the speed at which the gyrocopter was travelling in the course of the runs conducted by Mr Bellamy. In the video, the gyrocopter is travelling from left to right at an oblique angle towards the camera and, as is obvious from the very jittery video, it is taken from considerable distance away from the runway. Although CASA claimed the aircraft was travelling at about 45 knots, it is not possible to come to that conclusion from the angle of the video.

92.I have obtained a copy of the original McCulloch J2 gyroplane operator’s manual which states that the takeoff speed of the gyroplane is about 30 mph. That is the equivalent of approximately 26 knots. CASA also provided me with what is described as an Operations Manual from the Hoxton Park Flying School regarding the operations of the Super J-2 gyroplane. The operations manual for that aircraft describes lift-off at 41 knots. That may be where CASA has obtained the figure of about 45 knots. However, that aircraft is a modified J2 gyroplane, not the standard model which Mr Bellamy owned. While I accept that speed is a relative concept, a ground run at around 26 knots along a 1200 m runway cannot properly be described as a high-speed ground run. Also, it is significantly less than the speed estimated by CASA to have been 45 knots, particularly as the aircraft appeared not to have reached takeoff speed in any event...

I find it extremely amusing ( ) that, unlike the Quadrio or Rudd embuggerances, this time CASA's expert opinions, circumstantial and hearsay evidence is brought undone by witness testimony and video evidence. A win for the little guy..


MTF...P2