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Reg 11.075 request for information from Community Service Flight (CSF) pilots - August 2020.
Section 3 of the Civil Aviation Act 1988 defines “civil aviation authorisation” to include a licence. Specifically, it says;
“civil aviation authorisation" means an authorisation under this Act or the regulations to undertake a particular activity (whether the authorisation is called an AOC, permission, authority, licence, certificate, rating or endorsement or is known by some other name).
Reg 11.075 permits CASA to seek information on an activity under an authorisation. CSFs are done only by at least a full Class 2 medical certificate holder. The basic class 2 medical (GP Driver’s Medical) do not qualify to do a CSF. This pilot’s licence (authority or permission) is issued under Part 61. This is what CASA relies upon as the authorisation to seek this information. There may be an argument also that it is the 2019 CSF Instrument itself which provides the authority (or permission) to fly CSFs because having someone else pay for fuel rather than equally by those on the flight, is outside the authority of a private operation. However, I prefer that a Part 61 pilot has authority from their licence to do the flight, but it is subject to the conditions of the 2019 CSF Instrument (permission). The 2019 CSF Instrument was issued under Reg 11.068 on 12 February 2019.
The information is said by CASA to be required for the consideration of changes to this 2019 CSF Instrument. The Instrument sets conditions to performing CSFs.
Seems to me they can ask for this information – the fact it is said to be confidential would imply the information is only being gathered for the purpose of statistics. But what should be provided?
The supply of information is always subject to the overriding protection that a person is not required to incriminate themselves. Therefore, if there is a particular CSF flight of concern to the requested pilot, they might decide not to provide that information. There is a down side to doing this. If CASA data match and the pilot has not provided this flight’s information, one would expect CASA would seek further information. These CSFs are arguably a public benefit activity (carrying members of the public without fee), therefore I think there is a public policy consideration and objective higher duty of accountability, arguably higher than that of a normal private flight. The public might be said to have an interest is seeing this data. To not provide the information would seem contrary to the interests of keeping this public benefit available.
All that said – question 1 – “The total quantity of flights – including excerpts from your personal log book showing the times, dates, take-off/landing points and flight times.” I think this strictly speaking only requires the sought information from the log book for each CSF flight. Why would providing these details rather than a copy of the log book, not be sufficient? In my opinion it should be unnecessary to provide an excerpt of the log book for CSF flights as the answer can be provided without it. The purpose of Part 11.075 is to seek information. The 5th question – “Excerpts from your personal logbook for a period of 30 days preceding each flight conducted.” This seeks confirmation of compliance with the 30-day requirement in the CSF Instrument of doing a landing within those prior 30 days in an aircraft of the same class or type. I think CASA is entitled to assume that there has been regulatory compliance. However, I think the particular information of compliance flight details for each CSF can be provided to CASA by the pilot without providing an excerpt of the log book for the previous 30 days. This log book inspection of 30 days nor this compliance check touch on any statistic for CSFs other than the fact there may have been a non-compliance or two. I think CASA are entitled to ask the question and get an answer given the public interest concept, but to get the answer without providing personal information of the flying done in the preceding 30 days. The fact a flight may have been completed without incident and there was non-compliance with these 30 days, might well be an interesting statistic indicating the 30 days is not necessary. One notes the normal requirement of three landings and take offs within 90 days before carrying passengers.
I have some privacy issues with this question if the whole period of 30 days is required rather than just the compliance flight details.
CASA retains the power to issue a pilot with a notice to produce their logbook. If CASA were to randomly select pilots to so produce, an offence may be committed if the information provided does not match the log book (Reg 11.075(3)). The operations centre for Angel Flights presumably holds details of each Angel Flight. I suspect CASA does not have the statutory power to require production of this.
C McKeown
19 August 2020