[Peetwo]

CM's version of 'Alice in Wonderland' (CASA 30+ year RRP): Chapter 138 - 

Another rabbit hole to Wonderland: “aerial work passenger”

The discussion about the LAT accident in WA got me thinking about the circumstances in which people other than crew would be permitted to be carried in the seats on board. (I realise that only crew were on board in this instance, but I’m interested in the current certification basis of the airframe and what it could be authorised to do in Australia. However, I stress that I have no knowledge of what certificates/authorisations/approvals/permissions etc were/are in place for the operation of LATs in Australia.)

Anyway, it was with some trepidation that I lifted the lid on CASR Part 138 and the Part 138 MOS. I’ve been traumatised by exposure to this stuff in the past.

CASR 138.305 says:

138.305 Carriage of passengers—general

(1) This regulation applies to the operator of an aircraft for an aerial work operation whether or not the operator holds an aerial work certificate authorising the operation.

(2) A person contravenes this subregulation if:

(a) the person is the operator, or the pilot in command, of an aircraft for a flight involving an aerial work operation; and

(b) a passenger is carried on the aircraft for the flight; and

© any of the following circumstances exist in relation to the flight:

(i) the passenger is not an aerial work passenger;

(ii) when the passenger is carried on the aircraft, the operator of the flight does not hold an aerial work certificate authorising the operation;

(iii) when the passenger is carried on the aircraft, the operator’s operations manual does not include procedures to ensure the safety of the passenger;

(iv) any requirements about carrying the passenger that are prescribed by the Part 138 Manual of Standards for the purposes of this subparagraph are not met.

(3) A person commits an offence of strict liability if the person contravenes subregulation (2).

Penalty: 50 penalty units.

I accordingly focussed on the term “aerial work passenger”.

So, off to the CASR Dictionary. Part 1 of the CASR Dictionary says:

aerial work passenger means a person in a class of persons prescribed by the Part 138 Manual of Standards for the purposes of this definition.

So, off the Part 138 MOS. The Definitions Part of the Part 138 MOS has a definition of “aerial work passenger”. It says:

aerial work passenger has the meaning given by Part 1 of the CASR Dictionary.

Note An aerial work passenger is a specific subset of the general definition of passenger in the CASR dictionary. Only aerial work passengers may be carried in an aerial work operation and only on an aerial work certificate holder’s aircraft.

Whattha? Welcome, again, to Wonderland! I look to the CASR Dictionary to try to work out the meaning of a term in the offence provision (CASR 138.305), the CASR Dictionary points me to the Part 138 MOS but the Part 138 MOS definition tells me to go back to where I started.

Then I worked it out. It was the usual confusion caused by partial information which is misleading by omission. In this case, it’s the ‘Note’ under the definition in the MOS and what it does not say.
It starts by saying:

Note An aerial work passenger is a specific subset of the general definition of passenger in the CASR dictionary.

Good. That’s correct and helpful. It goes on to say:

Only aerial work passengers may be carried in an aerial work operation and only on an aerial work certificate holder’s aircraft.

That’s correct, too. There’s an offence if you carry an ‘ordinary’ passenger. But, we’re none the wiser as to what ‘aerial work passenger’ means and where exactly to find the answer.

The Note omits the most important snippet of information that would have helped solve the mystery intuitively. It could even have been expressed as a D&D clue. I’ve had a go at one at the end of this post.

I get it that there’s a legal reason for the prescription to be in the operative provisions, rather than the definitional provisions, of a MOS. But normal people don’t get that. These MOSs are supposed to be easy and intuitive reading for normal people and this one is the product of many years and many millions of dollars of effort. (And I should mention that CASR Part 138 has the second most silly section I have ever seen in Commonwealth legislation.)

On 20 November 2020, the then CEO of CASA proudly and forcefully said, to a Senate Committee, that:

[S]ignificant work … had reduced [the Part 138 MOS] from 200 pages to 75… and I then made that manual standards.

Mr Carmody omitted to add that the MOS he made back then had numerous Chapters and provisions marked as “Reserved”. Today, over two years later, there are still three Chapters marked “Reserved”.
Section 15.03 is marked “Reserved”. All of the substance of section 5.02 is marked “Reserved”. Meanwhile, it has grown fatter. While CASA is left to its own devices, it will grow fatter forever.

Mr Carmody made numerous, breathtaking statements during his evidence before the Senate Committee on 20 November 2020. I nearly fell off my chair when the stuff I’ve bolded was uttered:

[M]y focus was on completing the regulation suite. It's because my strong view is that we need to look at the entire regulation suite again, but we couldn't change horses midstream. We improved the way we do regulations, but we couldn't change it midstream. Within the context of that, reducing the regulatory burden is a clear element, but we needed to complete—

So we’ll keep riding the horse to a stupid place on the other side of whatever stream we’re in the middle of, then do a review so that we can spend a few decades riding off in some other, hopefully less stupid, direction (at someone else’s expense, of course).

He also made this statement:

The reg program is pretty much complete.

That was untrue then, it’s untrue now and all of the similar statements made by his predecessors were untrue too. Anyone with expertise in this kind of task knows that the last 20% of the work takes up about 80% of the time. The regulatory reform program is nowhere near complete, and will never be completed while CASA is left to its own devices.

The D&D clue (which I consent to CASA adding to the notes in the Part 138 MOS, without attribution to me):

If it’s the meaning of ‘aerial work passenger’ ye seek, at the definition do not peek! If you really want to know, off to section 2.02 you go!

Hansard - see HERE - and video segment to which CM refers to IE 20 November 2020 GA Inquiry hearing:

 

MTF...P2