Fit to Fly? Part 149: Recreational Self-Certification Medicals at Risk

Fit to Fly? Part 149: Recreational Self-Certification Medicals at Risk

Fit to Fly? Part 149: Recreational Self-Certification Medicals at Risk

August 23, 2019 By Benjamin Morgan
AOPA Australia Executive Director Benjamin Morgan reports.
This past week AOPA Australia became aware that the Civil Aviation Safety Authority Medical Records System is requiring pilots to accept a CASA Privacy Notice at the start of the...

This past week AOPA Australia became aware that the Civil Aviation Safety Authority Medical Records System is requiring pilots to accept a CASA Privacy Notice at the start of the medical application process, which declares that the regulator will disclose your medical information to recreational aviation organisations – ie. Part 149 Self Administrations.  Should a pilot decline, they cannot proceed with their Class 1 or 2 medical application.

The CASA Privacy Notice states;

It may also disclose them to recreational aviation administration organisations to facilitate their responsibilities for overseeing sport and recreational aviation activities.

Prior to Part 149 Self-Administration, there was no process in place for CASA to information share medical history information with recreational or sport aviation bodies, with each responsible for maintaining independent medical record systems.  Under Part 149, this will change.

AOPA Australia members are concerned that CASA will share their medical history information with recreational and sport aviation bodies, which may place at risk their ability to fly should it be communicated that they have failed a medical, or have been declared by the regulator to be unfit to hold a Class 1, Class 2 or Basic Class 2 certificate.

AOPA Australia has reached out to CASA’s Executive Manager, Legal Affairs and Regulation, Dr Jonathan Aleck, to clarify the Privacy Notice and the pilot medical information sharing, who confirmed that CASA will share ‘relevant’ medical information with Part 149 Self-Administrations that are involved in the issuance of pilot medical certificates.

AOPA Australia and the Sport Aircraft Association of Australia, will be meeting in the coming week to further discuss the concern and to prepare an industry response.


Click: to download a PDF copy of Part 149


Subpart 149.G—Authorisation

149.400  Grounds for refusal of application for authorization

(1)  An ASAO must not reject an application by a person for an authorisation to undertake an activity administered by the ASAO on grounds other than the eligibility criteria set out in the ASAO’s aviation administration and enforcement rules.

Note:          For review by CASA of decisions by ASAOs, see Subpart 149.K.

(2)  Subregulation (1) does not apply if the ASAO reasonably believes that acceptance of the application would constitute an offence against the civil aviation legislation.

149.405  Disclosure of information in application for authorisation

(1)  A person contravenes this subregulation if:

(a)  the person applies to an ASAO for an authorisation to undertake an activity; and

(b)  the person does not disclose, in the application, details of each cancellation, variation or suspension (other than at the person’s request) of authorisations:

(i)  held by the person that are the same in substance as the authorisation applied for; and

(ii)  issued by the ASAO, another sport aviation body, CASA or the national aviation authority of a foreign country;

in the period starting 10 years before the making of the application.

(2)  A person commits an offence of strict liability if the person contravenes subregulation (1).

Penalty:  50 penalty units.

149.410  Authorisation holders must comply with ASAO’s exposition

(1)  The holder of an authorisation issued by an ASAO contravenes this subregulation if:

(a)  a provision of the ASAO’s exposition applies to the holder; and

(b)  the holder contravenes the provision.

(2)  A person commits an offence of strict liability if the person contravenes subregulation (1).

Penalty:  50 penalty units.

149.415  Notice of suspension, variation or cancellation of authorisation

CASA‑issued authorisation—cancellation etc. by CASA

(1)  Subregulation (2) applies if:

(a)  a person holds an authorisation (the first authorisation) issued by CASA; and

(b)  CASA suspends, varies or cancels the first authorisation other than at the person’s request; and

(c)  a person holds an authorisation (the second authorisation) issued by an ASAO.

(2)  The person must, within 7 days after the suspension, variation or cancellation takes effect, give written notice of the suspension, variation or cancellation to the ASAO.

ASAO‑issued authorisation—cancellation etc. by ASAO or CASA

(3)  Subregulation (4) applies if:

(a)  a person holds an authorisation (the first authorisation) issued by an ASAO to undertake an activity; and

(b)  CASA or the ASAO suspends, varies or cancels the first authorisation other than at the person’s request; and

(c)  the person holds an authorisation issued by another sport aviation body.

(4)  The person must, within 7 days after the suspension, variation or cancellation takes effect, give written notice of the suspension, variation or cancellation to the other sport aviation body.

ASAO‑issued authorisation—cancellation etc. by national aviation authority of a foreign country

(5)  Subregulation (6) applies if:

(a)  a person holds an authorisation (the first authorisation) issued by an ASAO; and

(b)  the person holds an authorisation (the other authorisation) issued by a national aviation authority of a foreign country; and

(c)  the other authorisation is suspended, varied or cancelled other than at the person’s request.

(6)  The person must, within 7 days after the suspension, variation or cancellation takes effect, give written notice of the suspension, variation or cancellation to the sport aviation body and CASA.

Offence

(7)  A person commits an offence of strict liability if the person contravenes subregulation (2), (4) or (6).

Penalty:  50 penalty units.

149.425  Reporting conduct of authorisation holders etc.

(1)  An ASAO must give a report to CASA, in writing, if the ASAO reasonably believes that:

(a)  both of the following apply:

(i)  the holder of an authorisation issued by the ASAO has contravened the ASAO’s exposition;

(ii)  despite remedial or disciplinary action taken by the ASAO, the conduct of the holder of the authorisation jeopardises the safety of civil aviation; or

(b)  both of the following apply:

(i)  a person is undertaking an activity for which the person is required, under these Regulations, to hold an authorisation issued by an ASAO;

(ii)  the person does not hold an authorisation issued by the ASAO to undertake the activity; or

(c)  a person is undertaking an activity for which the person holds an authorisation issued by an ASAO in a way that contravenes the authorisation; or

(d)  an aircraft that has ceased to be registered under Part 47 or administered by the ASAO is being flown.

(2)  An ASAO must give the report to CASA within the time specified in the ASAO’s exposition.

(3)  An ASAO commits an offence of strict liability if the ASAO contravenes subregulation (2).

Penalty:  50 penalty units.

149.430  Reporting applications for authorisations in certain circumstances

Reporting of all variations and cancellations

(1)  An ASAO contravenes this subregulation if:

(a)  a person applies to the ASAO for an authorisation to undertake an activity; and

(b)  the ASAO knows that the person holds, or has held, an authorisation (the other authorisation):

(i)  that is the same in substance as the authorisation applied for; and

(ii)  that was issued by the ASAO, another sport aviation body, CASA or the national aviation authority of a foreign country; and

(c)  the ASAO knows that the other authorisation was varied or cancelled other than at the person’s request; and

(d)  the ASAO does not report details of the application to CASA, in writing, within 7 days after the person makes the application.

Reporting of current suspensions

(2)  An ASAO contravenes this subregulation if:

(a)  a person applies to the ASAO for an authorisation to undertake an activity; and

(b)  the ASAO knows that the person holds an authorisation (the other authorisation):

(i)  that is the same in substance as the authorisation applied for; and

(ii)  that was issued by the ASAO, another sport aviation body, CASA or the national aviation authority of a foreign country; and

(c)  the ASAO knows that, at the time of the application, the other authorisation is suspended other than at the person’s request; and

(d)  the ASAO does not report details of the application to CASA, in writing, within 7 days after the person makes the application.

(3)  An ASAO commits an offence if the ASAO contravenes subregulation (1) or (2).

Penalty:  50 penalty units.

149.435  ASAO to refuse to issue authorisation if suspended etc.

Other authorisation currently suspended

(1)  An ASAO contravenes this subregulation if:

(a)  a person applies to the ASAO for an authorisation (the new authorisation) to undertake an activity; and

(b)  the ASAO knows that the person holds an authorisation (the other authorisation):

(i)  that is the same in substance as the new authorisation; and

(ii)  that was issued by the ASAO, another sport aviation body, CASA or the national aviation authority of a foreign country; and

(c)  the ASAO knows that, at the time of the application, the other authorisation is suspended other than at the person’s request; and

(d)  the ASAO issues the new authorisation to the person.

Other authorisation is or has been varied

(2)  An ASAO contravenes this subregulation if:

(a)  a person applies to the ASAO for an authorisation (the new authorisation) to undertake an activity; and

(b)  the ASAO knows that the person holds, or has held, an authorisation (the other authorisation):

(i)  that is the same in substance as the new authorisation; and

(ii)  that was issued by the ASAO, another sport aviation body, CASA or the national aviation authority of a foreign country; and

(c)  the ASAO knows that the other authorisation was varied other than at the person’s request; and

(d)  the ASAO issues the new authorisation to the person.

Other authorisation has been cancelled

(3)  An ASAO contravenes this subregulation if:

(a)  a person applies to the ASAO for an authorisation (the new authorisation) to undertake an activity; and

(b)  the ASAO knows that the person has held an authorisation (the other authorisation):

(i)  that is the same in substance as the new authorisation; and

(ii)  that was issued by the ASAO, another sport aviation body, CASA or the national aviation authority of a foreign country; and

(c)  the ASAO knows that the other authorisation was cancelled other than at the person’s request; and

(d)  the ASAO issues the new authorisation to the person.

Exception—CASA approval

(4)  Subregulation (1), (2) or (3) does not apply if, before the new authorisation is issued, CASA has given approval under this subregulation to the ASAO to issue the new authorisation to the person.

Note:          A defendant bears an evidential burden in relation to the matter in this subregulation: see subsection 13.3(3) of the Criminal Code.

Offence

(5)  An ASAO commits an offence if the ASAO contravenes subregulation (1), (2) or (3).

Penalty:  50 penalty units.

(6)  Strict liability applies to paragraphs (1)(a) and (d), (2)(a) and (d) and (3)(a) and (d).

149.440  ASAO to refuse to issue authorisation if exclusion period is in force

(1)  An ASAO contravenes this subregulation if:

(a)  a person applies to the ASAO for an authorisation authorising the person to undertake an activity; and

(b)  the ASAO knows that an exclusion period is in force under an order under section 30A of the Act in relation to the person and an authorisation that is the same in substance as the authorisation applied for; and

(c)  the ASAO issues the authorisation.

(2)  Subregulation (1) does not apply if, before the authorisation is issued, CASA has given approval under this subregulation to the ASAO to issue the authorisation to the person.

Note:          A defendant bears an evidential burden in relation to the matter in this subregulation: see subsection 13.3(3) of the Criminal Code.

(3)  An ASAO commits an offence if the ASAO contravenes subregulation (1).

Penalty:  50 penalty units.

 



 

Benjamin Morgan

Executive Director - Aircraft Owners and Pilots Association (AOPA) of Australia

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