Clinton McKenzie
1st Jul 2024, 00:34
Some of you may recall the thread I started, in June 2023 (https://www.pprune.org/pacific-general-aviation-questions/653245-avmed-delays-granting-medical-certificates-our-old-certificate-kept-alive.html?highlight=11.140), discussing the question whether CASR 11.140 keeps medical certificates ‘alive’ if an application is made, by the holder of a current certificate, for a new certificate of the same kind and CASA fails to make a decision on the application before the date of expiry stated on the certificate.
Correspondence with CASA ensued. CASA expressed the view that CASR 11.140 does not apply to medical certificates.
Because I cannot be disinterested in the matter, I sought advice from Cain Sibley of Clayton Utz. Those who, like me, watched closely the proceedings of the ‘RoboDebt’ Royal Commission will understand why I chose Mr Sibley in particular.
Mr Sibley’s conclusion is the same as mine. (See the photograph of the key paragraph from his advice, below. When I work out how to redact his signature from his entire advice, I’ll make that available to anyone who cares to read it.)
I wrote to Pip Spence and Jonathan Aleck at CASA in the following terms on Thursday 28 June 2024:
CASA’s interpretation of CASR 11.140 – operation in relation to medical certificates
Because I am not disinterested in the subject matter, I sought advice from Cain Sibley of Clayton Utz on the operation of CASR 11.140 in relation to medical certificates. (Those who, like me, watched closely the proceedings of the ‘RoboDebt’ Royal Commission will understand why I sought advice from Mr Sibley in particular.) His settled advice is attached.
Mr Sibley’s conclusion is the same as mine and contrary to CASA’s position. Though I’m not disinterested in relation to the issue, I find his conclusion entirely unsurprising and have always considered CASA’s position to be absurd. I will be publishing Mr Sibley’s advice and this email to you.
CASA’s interpretation of CASR 67.150(7) – operation in relation to the unchanged colour perception criterion
While on the theme of CASA’s position on the interpretation of the regulations, you may recall that in correspondence about the recent colour vision controversy CASA expressed a view about the application of CASR 67.150(7) to the circumstances. The question arose because pilots with colour vision defects kept receiving CASA correspondence citing CASR 67.150(7) as having some consequence in the circumstances, supposedly justifying a potential change in the pilot’s medical certification in relation to colour vision.
CASR 67.150(7) says:
“If a change is made to a criterion in an item of table 67.150, a person who held a class 1 medical certificate and satisfied the criterion immediately before the change, but fails to satisfy the criterion as changed, is taken to satisfy the criterion for 2 years after the day when the change is made.”
I note that not a single syllable of the colour perception criterion in the class 1 medical standard in CASR - item 1.39 of table 67.150 - has ever changed. I also note that not a single syllable of the CASR prescribing the means of demonstration with that criterion - 67.150(6) - has ever changed. Ditto the equivalent provisions for the class 2 medical standard.
CASA told the CVDPA that:
“While the criterion which are defined in the table have not changed, the criterion for colour perception is the only one which the regulations specifically call out a method for how it will be established. Our view is that the intent of 67.150(7) could apply to the method.”
CASA’s position therefore appears to be that CASR 67.150(7), which is expressed to apply only if “a change is made to a criterion in an item of table 67.150”, applies to an unchanged regulation, outside table 67.150, prescribing the way in which compliance with the unchanged colour perception criterion in table 67.150 must be demonstrated. Frankly, I find the position stated by CASA about CASR 67.150(7) to be more absurd than CASA’s position on the interpretation of CASR 11.140. (And by the way: the colour perception criterion is not “the only one which the regulations specifically call out a method for how it will be established”. See, for example, the hearing criterion in table 67.150.)
But, as I say, I’m not disinterested in these issues. Before I seek and publish Mr Sibley’s advice on the interpretation of CASR 67.150(7), could you please confirm that CASA’s position continues to be as quoted above.I’ll keep everyone informed of any further correspondence.
https://cimg6.ibsrv.net/gimg/pprune.org-vbulletin/1766x1193/picture_of_advice_para_casr_11_140_0f65e99ff9c78616ffea47eb7 3bd3a62b1097271.jpeg
Correspondence with CASA ensued. CASA expressed the view that CASR 11.140 does not apply to medical certificates.
Because I cannot be disinterested in the matter, I sought advice from Cain Sibley of Clayton Utz. Those who, like me, watched closely the proceedings of the ‘RoboDebt’ Royal Commission will understand why I chose Mr Sibley in particular.
Mr Sibley’s conclusion is the same as mine. (See the photograph of the key paragraph from his advice, below. When I work out how to redact his signature from his entire advice, I’ll make that available to anyone who cares to read it.)
I wrote to Pip Spence and Jonathan Aleck at CASA in the following terms on Thursday 28 June 2024:
CASA’s interpretation of CASR 11.140 – operation in relation to medical certificates
Because I am not disinterested in the subject matter, I sought advice from Cain Sibley of Clayton Utz on the operation of CASR 11.140 in relation to medical certificates. (Those who, like me, watched closely the proceedings of the ‘RoboDebt’ Royal Commission will understand why I sought advice from Mr Sibley in particular.) His settled advice is attached.
Mr Sibley’s conclusion is the same as mine and contrary to CASA’s position. Though I’m not disinterested in relation to the issue, I find his conclusion entirely unsurprising and have always considered CASA’s position to be absurd. I will be publishing Mr Sibley’s advice and this email to you.
CASA’s interpretation of CASR 67.150(7) – operation in relation to the unchanged colour perception criterion
While on the theme of CASA’s position on the interpretation of the regulations, you may recall that in correspondence about the recent colour vision controversy CASA expressed a view about the application of CASR 67.150(7) to the circumstances. The question arose because pilots with colour vision defects kept receiving CASA correspondence citing CASR 67.150(7) as having some consequence in the circumstances, supposedly justifying a potential change in the pilot’s medical certification in relation to colour vision.
CASR 67.150(7) says:
“If a change is made to a criterion in an item of table 67.150, a person who held a class 1 medical certificate and satisfied the criterion immediately before the change, but fails to satisfy the criterion as changed, is taken to satisfy the criterion for 2 years after the day when the change is made.”
I note that not a single syllable of the colour perception criterion in the class 1 medical standard in CASR - item 1.39 of table 67.150 - has ever changed. I also note that not a single syllable of the CASR prescribing the means of demonstration with that criterion - 67.150(6) - has ever changed. Ditto the equivalent provisions for the class 2 medical standard.
CASA told the CVDPA that:
“While the criterion which are defined in the table have not changed, the criterion for colour perception is the only one which the regulations specifically call out a method for how it will be established. Our view is that the intent of 67.150(7) could apply to the method.”
CASA’s position therefore appears to be that CASR 67.150(7), which is expressed to apply only if “a change is made to a criterion in an item of table 67.150”, applies to an unchanged regulation, outside table 67.150, prescribing the way in which compliance with the unchanged colour perception criterion in table 67.150 must be demonstrated. Frankly, I find the position stated by CASA about CASR 67.150(7) to be more absurd than CASA’s position on the interpretation of CASR 11.140. (And by the way: the colour perception criterion is not “the only one which the regulations specifically call out a method for how it will be established”. See, for example, the hearing criterion in table 67.150.)
But, as I say, I’m not disinterested in these issues. Before I seek and publish Mr Sibley’s advice on the interpretation of CASR 67.150(7), could you please confirm that CASA’s position continues to be as quoted above.I’ll keep everyone informed of any further correspondence.
https://cimg6.ibsrv.net/gimg/pprune.org-vbulletin/1766x1193/picture_of_advice_para_casr_11_140_0f65e99ff9c78616ffea47eb7 3bd3a62b1097271.jpeg