[Peetwo]

The Empire Strikes Back (again) on CVD Pilots: Senate Estimates 12/02/24 

Via Senate Estimates:

Senator FAWCETT: Ms Spence, could I just point out the logic fault in this. The position Australia adopted in February 2020 was aligned with the FAA and with the New Zealand authority. Do you know how many licensed pilots are flying in America?

Ms Spence : We've got two issues.

Senator FAWCETT: Ms Spence, sorry—I'm asking you a question.

Ms Spence : No, I don't.

Senator FAWCETT: There are around 620,000—about 110,000 commercial pilots. They've had the system operating for a number of years with no incidents. Yet the assertion here is that because Australia has done this for a couple of years without incident, we must be on the wrong path. The US has been doing it for years, so I'm saying that the whole premise behind this paper is based on flawed logic.

Ms Spence : That paper is not the basis on which we are going forward. The issues that we raised—which we briefed you on separately—were the issues that we had with the operationalisation of the OCVA and what we are trying to do to address that. I might refer to my colleague.

Mr Marcelja : One of the things that we have really taken very seriously is the instability and the uncertainty about how this issue has been treated. To avoid the situation that you are recounting, where changes were made from different areas perhaps in an unstructured way, we are proposing to settle the policy forward through a regulatory process that actually puts a position out for consultation over the next probably six weeks and create a legislative instrument that captures how we treat colour vision in a way that is transparent and open and subject to review and scrutiny, so that we do not end up in the situation that you were talking about where people have instability and uncertainty.

As Ms Spence said, the paper that you have in front of you is not CASA's position. That is an internal discussion paper that some members of our medical community might have had. But we are taking it forward from a whole-of-CASA perspective that includes inputs from our operational areas, our flying standards areas and our medical areas. We intend to consult publicly to create stability.

Senator FAWCETT: I'm pleased to hear that. This may have only been a discussion paper, but it did start, until October last year, to have material impact on pilots and their professions and their ability to operate, because it was starting to be operationalised clearly without an internal review and approval process.

Ms Spence : And we are addressing that now, Senator.

Senator FAWCETT: I accept what you are saying and I welcome that—a good strong process—but I want to go back to the basis of principle. The whole discussion started with the fact that you believed that the operational test was a valid way to move forward as a third level of testing. Both you, I believe, and Dr Manderson made the comment that, should a pilot pass that operational test without any issues, they would be issued an aviation medical certificate without condition, note, restriction, endorsement et cetera. Is that still your principled position that you are seeking to find the evidence to work towards?

Ms Spence : We are working our way through that, and it will be the basis for a discussion paper, as Mr Marcelja mentioned. That is the intention. I don't think we have moved away from that, but we just need to make sure that we can actually turn the principle into a deliverable outcome.

Senator FAWCETT: You have highlighted in the evidence you have provided that there has been close dialogue with both the New Zealanders and the FAA. Have they indicated that they will change their position if you don't believe that you can reach that point?

Ms Spence : I think our issue is more around how we come up with a repeatable test. At this stage, we haven't had any conversations with the FAA or New Zealand to suggest that they would move away from their positions. But, again, we can take on notice if there has been any feedback along those lines.

Senator FAWCETT: If you don't believe that you can come up with a repeatable operational test that satisfies your safety requirements, does that mean that there will be a flow-on impact where you will stop any pilots that are licensed by the FAA?

Ms Spence : You are asking us to make assessments about something that hasn't actually happened yet. So I would rather let us get through the process that we are working through before we guess what happens after that.

Senator FAWCETT: It is the logical extension of your argument, though.

Ms Spence : I'm talking about what we are actually going to be consulting on. If, as a result of the consultation, we find ourselves unable to progress the way that we have been discussing, we will be open and transparent about what our next steps are. I don't know what other countries will do in response to anything that we do, either.

Over on the UP CM picks up on the revelations and dismal performance of Su_Spence and Marcel Marceau...

Clinton McKenzie

Who is going to be consulted, about what and why?

Ms Spence has now reverted to her usual prevarication tool: “consultation”.

I note that when CAD was inflicted, by Navathe and his fellow zealots, on pilots and aspiring pilots with CVD, there was no consultation with the people whose interests were adversely affected by that CASA action.

I also note that when the OCVA was ‘suspended', there was no consultation with the people whose interests were adversely affected by that CASA action.

CVDPA was told it would be consulted in the supposed ‘strengthening’ of the OCVA that was supposedly going on over the last couple of years. There was no consultation with CVDPA and that strengthening process wasn’t happening.

The only ‘consultation’ happened in an echo chamber built by CASA.
A lot of that happened on Ms Spence's watch.

The pretext of “confusion” and “lack of standardisation” in the administration of the OCVA

Pretext: an appearance assumed in order to cloak the real intention or state of affairs.

Here’s what actually happened:

The zealots were let loose to implement their personal opinion that anyone who fails the ‘clinical’ tests – the first two of the ‘tiers’ of testing prescribed in the regulations – fails to meet the zealot’s interpretation of the legislated medical standard, and that’s that. The only remaining issue for the zealots is the extent of the restrictions put on the candidate.

The zealots stuck with CAD as a purported third tier test because almost all, if not all, candidates who fail the first two tiers will fail CAD, because CAD is just a colour vision diagnostic test – the clue is in the name. (That said, I’ve heard, second-hand, of candidates who have ‘passed’ CAD. I am waiting to get first-hand evidence of any person having failed Ishara and Farnsworth but having passed CAD and then been issued a ‘clean’ medical certificate so far as colour vision is concerned. If you are that unicorn, could you please contact CVDPA.) Operational tests became a non-existent ‘fourth tier’ to be undergone after the CAD was failed and the candidate had already been assessed as having failed to meet the colour vision standard.

All of that was implemented in fact, in both correspondence and (the usual) uncontrolled changes to AvMed documents. As noted above, there was no intention to ‘strengthen’ the OCVA as a ‘third tier’ test. Indeed, one of the documents disclosed under FOI suggested that candidates be put through the expense of an ACVA, after failing CAD, as a means of validating the CAD.

CASA has just one job in relation to CVD: Determine one or more tests simulating an operational situation as ‘third tier’ test. That wasn’t being done because the zealots don’t want to do that, and have carefree indifference to what the law says because they’ve been encouraged to have that indifference through being left to their own devices.

How to justify all this? We all know the answer to that in CASA: Safety! The silly flight examiners were confused and not administering the OCVA in a standardised way. The OCVA had to be suspended because it was about to rain aluminium. Mere pretext.

Meanwhile, due to the lack of adequate corporate governance, CASA could not produce any written record of the determination of the CAD as a purported third tier test, by a person with the power of determination. How to sweep that under the carpet? Just say there’s no currently determined third tier test.

That suits the zealots’ crusade perfectly. Candidates currently don’t even get the chance to pass a third tier test that’s enshrined in legislation that CASA is supposed to administer, competently and disinterestedly.

(When CVDPA funds a Federal Court application re CASA’s one job, there will be some interesting consequences for CASA if the Court declares, among other things, that the CAD was not and could never have been validly determined as a ‘third tier’ test. All of the people who undertook CAD because CASA asserted it was a ‘third tier’ test may be a bit miffed, and justifiably so.)

How to say something true to obscure the truth

“It’s not true Senator. We are continuing to offer further testing.”

Yeah, but it’s not third tier testing, is it Ms Spence. It’s testing that’s “offered” after the candidate has already been assessed by AvMed as having failed meet the medical standard and AvMed has already decided to restrict the candidate, the only question being how much. That’s why Mr Marcelja mentioned the ‘flexibility’ provisions. AvMed is currently ignoring the third tier test provisions – they are inconvenient to the zealots – and using the ‘flexibility’ provisions to be ‘nice’ to candidates with CVD.

Currently that “further testing” is effectively the candidate spending time and money to get a stick with which AvMed will beat the candidate, after CASA has already decided the candidate fails to meet the standard and will be restricted in some way.

We can’t recall what those documents disclosed under FOI say

So Ms Spence and Mr Marcelja fronted Estimates knowing that they would be questioned about CVD and didn’t ask for a brief on, nor have available to them, the documents about the issue disclosed by CASA under FOI? Seems incredible to me.

Incredible: too extraordinary and improbable to be believed.

Either that, or incompetence. When I fronted Parliamentary committees, I was properly briefed and armed with every document necessary to support any answers I gave to the breadth of questions likely to be asked.

This was after CVDPA refuted the bullsh*t that no one ever failed the OCVA, by producing to CASA a CASA AvMed document that had been disclosed under FOI. When the PMO stated, at the meeting on 23 Jan, no one had failed the OCVA, CVDPA emailed Ms Spence and Mr Marcelja (and Dr Manderson and Dr Aleck) a copy of that CASA AvMed document, and quoted and highlighted in the covering email, the specific text from that document. (I could spend a week exposing and refuting other bullsh*t in the FOI documents about CVD.)

The constant appeal to ICAO might have some credibility if, first, Australia didn’t file numerous differences to ICAO and, secondly, if the current provisions of Part 67 didn’t comply with ICAO SARPs on colour vision deficiency.

The people whose job it was to give domestic effect to ICAO Annex 1 Chapter 6 did so in legislation, now in what’s called Part 67 of CASR. Those people also arranged for the filing of differences. And it’s very interesting to note what differences Australia has filed in relation to the CASRs relating to colour vision.

Australia represents to the world that the CASR provisions for demonstration of compliance with the colour perception criterion – which haven’t changed in at least 20 years - comply with ICAO Annex 1 Chapter 6. In fact, Australia represents to the world that one CASR provision for demonstration of compliance with the colour perception criterion exceeds ICAO Annex 1 Chapter 6.

Australia tells the world that the CASR for demonstration of compliance with the colour perception criterion for class 3 in CASR ‘exceeds’ ICAO Annex 1 Chapter 6 requirements. And that’s correct. It’s correct because Australia’s class 3 colour vision standard is the Ishihara test alone. That’s in CASR 67.160(6). There is no ‘tier 2’ or ‘tier 3’ test in Australia’s class 3 standard. The legislature has decided that Air Traffic Controllers must pass Ishihara, even though that’s in excess of ICAO Annex 1 Chapter 6 requirements. (I’ll leave experts in ATC to decide whether that’s an ‘overkill’ in 21st century Australia and, if it is, to mount their own campaign for CASR 67.160(6) to be changed. My understanding is that it is due to long-held superstitions, in one of the ICAO contracting states, about different cultures and ethnicities having different emotional reactions to colours.)

Australia also tells the world – also correctly – that the provisions for demonstration of compliance with the colour perception criterion for Class 1 and 2 in CASR meet ICAO Annex 1 Chapter 6. That’s because the ‘tiers’ of testing in CASRs 67.150(6) and 67.155(6) are consistent with ICAO Annex 1 Chapter 6.

Short point: Requiring a pass in Ishihara alone exceeds ICAO requirements. Requiring a pass in one of three tiers of testing, including a test simulating an operational situation, meets ICAO requirements.

That’s why, when the OCVA was being administered as a ‘third tier’ test and candidates who passed that test were issued with a ‘clean’ medical certificate so far as colour vision is concerned, Australia did not ‘file’ a new ‘difference’ from ICAO SARPS. That wasn’t necessary, because there was no change – and there has been no change - in the colour perception criterion in the medical standard or in the regulation prescribing the means of demonstration of compliance. All that’s changed is the people and their personal opinions in CASA.

But if it’s about safety, what are you doing about FAA-certified candidates with CVD and NZ-certified candidates with CVD who are flying transport category aircraft in and out of Australia with ‘clean’ medical certificates?

Very good question Senator Fawcett. CVDPA also asked those questions of CASA – on invitation from CASA – and silence continues to be the stern reply. For obvious reasons.

It’s not about safety. It’s about AvMed zealots who’ve been encouraged to harbour grandiose delusions as to the significance of their personal opinions, through being allowed to, among other things, treat pilots and aspiring pilots with CVD as guinea pigs.

MTF...P2