Civil Aviation Safety Authority v Pudniks

Case •

[2022] NSWLC 26

•

15 December 2022

No judgment structure available for this case.

Local Court


New South Wales

Medium Neutral Citation: Civil Aviation Safety Authority v Pudniks [2022] NSWLC 26
Hearing dates: 23 November 2022
Date of orders: 15 December 2022
Decision date: 15 December 2022
Jurisdiction:Criminal
Before: Farnan LCM
Decision:

Offences proved

Catchwords:

Aviation – aircraft – paraglider - flight time

Legislation Cited:

Civil Aviation Act 1988 (Cth) s 20AB

Civil Aviation Order 95.8 Instrument 2011

Civil Aviation Regulations 1988 (“CAR”)

Civil Aviation Safety Regulations 1998 (“CASR”).

Cases Cited:

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490

Category:Principal judgment
Parties: Civil Aviation Safety Authority
Kurt Pudniks
Representation: Mr Clifford-O'Sullivan for CASA
Mr Benetatos for defendant
File Number(s): 2022/15047
Publication restriction: None

JUDGMENT

  1. The defendant Mr Pudniks operates a paraglider for recreation. Until 30 August 2020 he held a certificate that allowed him to do that in particular circumstances under the aviation law. Since then he has continued to use his paraglider on a number of occasions. The Civil Aviation Safety Authority says that by doing so he is breach of section 20AB of the Civil Aviation Act 1988 (Cth) (hereafter called the CAA).

  2. The onus is on the prosecuting authority to prove each allegation beyond a reasonable doubt.

  3. The resolution of this case involves, in my view, determination of two questions.

  4. First, is a paraglider an aircraft for the purposes of s 20AB CAA?

  5. Secondly, if the answer to the first question is yes, what does the phrase “during flight time” in section 20AB mean, when applied to the operation of a paraglider. Do Mr Pudniks’ activities as admitted amount to performing duties “essential to the operation of an Australian aircraft during flight time”?

  6. I am grateful to the parties for reducing the time required for what could have been a very lengthy hearing by the agreement of a number of facts. I have only been required to hear evidence from two witnesses, Dr Sonya Brown, an aeronautical engineering expert, and the defendant.

Background

  1. The allegations before the court are of offences on 16 occasions between 12 September 2020 and 17 May 2021. Sequences 1, 2, 3, 6, 7, 8, 11, 12, 13, 14, 15 and 16 are alleged to have occurred from a launch site at Mount Blackheath. Sequence 4 is alleged to have occurred at Otford, and sequences 5, 9, and 10 at Stanwell Tops.

  2. Exhibit 1 contains the Agreed Facts pursuant to section 191 of the Evidence Act 1995 (NSW).

  3. There are no facts in dispute in relation to the defendant’s operation of the paraglider. He does not dispute that until 31 August 2020 he was a member of the Sports Aviation Federation of Australia (SAFA), the governing body for persons in Australia undertaking paragliding sport aviation activities. He held a PG4 pilot certificate, and had accrued approximately 250 flying hours in a paraglider. When his membership of SAFA expired on that date his pilot certificate was automatically cancelled.

  4. The defendant knew his pilot certificate had been cancelled. He did not hold a civil aviation authorisation essential to the operation of an Australian aircraft. He had not been given approval by the Civil Aviation Safety Authority (“CASA”) to fly a paraglider. (Agreed Facts 2-10).

  5. He has formally agreed that on each occasion alleged in a sequence before the court he operated the paraglider as “pilot-in-command” of the paraglider. The agreed facts contain reference to observations by witnesses on each occasion, including by other members of SAFA and on occasions the Blue Mountains Hang Gliding Club (Agreed Facts Paras 11-26). He was not under supervision by an instructor on any of the occasions alleged.

  6. Exhibit 2 is a statement of Mr Andrew McMurray who is the president of the Blue Mountains Hang Gliding Club. That statement includes opinions of Mr McMurray, which are not disputed, of his own observations on 27 November 2020 and 23 January 2021 of the defendant operating his paraglider in conditions that in Mr McMurray’s opinion were not suitable for paragliding. That statement was not objected to, however it is not an element of any of the offences before the court that the defendant was operating in unsafe conditions. Attached to Exhibit 2 is a photograph of the defendant landing the paraglider on the Mount Blackheath golf course on 23 January 2021.

  7. The paraglider operated by the defendant is agreed to weigh 10.583 kg (I note that a paraglider is defined in the Civil Aviation Order 95.8 so as to require it to have an empty weight of less than 70Kg).

  8. SAFA was the only governing body for paragliding activities in Australia at the relevant times. SAFA has the power to issue pilot qualifications and certificates.

  9. Mr Pudniks gave evidence. There was no obligation on him to do so, but he did so in his own defence. He said that he had undertaken all of the training required for piloting a paraglider through the club system, that he had flown roughly 500 flights in a paraglider and that he has degrees in engineering and physics from the Australian National University. He described the way in which he operated a paraglider, including the necessity to run as fast as possible off a hill in order to begin his descent, and said that in still air he would never reach a height above the launch height. He gave evidence that that was because a paraglider is always falling, and not deriving support from the reactions of the air. That was contrasted with moving air, which he described as actions of the air rather than reactions, which enabled him to achieve higher altitudes. He described the use of thermal lift and ridge lift, to enable a paraglider pilot to stay in the air for hours. He described the need to find thermals in order to obtain support through rising air.

  10. He was not qualified as an expert in aeronautics. Clearly he has a great deal of experience practically in paragliding. To the extent that he gave opinion evidence, it was clearly not expert evidence, as contrasted with the evidence of Dr Brown. He certainly agreed in cross examination that a paraglider falls more slowly than a rock however he maintained, and I will come back to this, that the paraglider was not supported in the air.

The offences

  1. Each offence is alleged to have been committed against section 20 AB(1) CAA. That section provides as follows:

20AB Flying aircraft without licence etc 

(1)   A person must not perform any duty that is essential to the operation of an Australian aircraft during flight time unless:

(a)   the person holds a civil aviation authorisation that is in force and authorises the person to perform that duty; or

(b)   the person is authorised by or under the regulations to perform that duty without the civil aviation authorisation concerned.

Penalty: Imprisonment for 2 years.

(2)   A person must not carry out maintenance on:

(a)   an Australian aircraft; or

(b)   an aeronautical product in Australian territory; or

(c)   an aeronautical product for an Australian aircraft;

if the person is not permitted by or under the regulations to carry out that maintenance.

Penalty: Imprisonment for 2 years.

(3)   Nothing in subsection (1) or (2) limits the power to make regulations under this Act that provide for an offence of undertaking another activity without the appropriate civil aviation authorisation or special authorisation under the regulations.

(4)   In this section, flight time has the same meaning as in the regulations.

  1. Section 3A of the act provides as follows:

3A Main object of this Act

The main object of this Act is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.

  1. Section 3 defines aircraft as follows:

aircraft means any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface.

  1. That last exception, I note, was referred to in Dr Brown’s evidence as referring generally to hovercraft, that is reactions of the air against the earth’s surface and there was no submission made to the contrary in relation to that. So the relevant portion of the definition is “any machine or craft that can derive support in the atmosphere from the reactions of the air”.

  2. The first issue requires me to determine whether a paraglider is an aircraft as defined in section 3. If I am not satisfied beyond reasonable doubt of that, the defendant is entitled to be acquitted.

  3. If I am satisfied beyond reasonable doubt that a paraglider is an aircraft, the prosecution must then prove that the defendant on each occasion, relevantly, acted as pilot in command “during flight time”, as defined in the regulations, pursuant to sub section 4.

  4. Determination of the meaning of “flight time” in the regulations is not as straightforward as one might expect.

Is a paraglider an aircraft?

  1. In seeking to persuade me that a paraglider is an aircraft under the provisions of the definition I have just set out, the prosecution exhibit 3 was tendered, being an expert report of Dr Sonya Brown, whose expertise in aeronautics is not in dispute.

  2. Whilst Dr Brown has expressed an opinion about whether a paraglider comes within the legal definition, that is a matter for me as the tribunal of fact to determine.

  3. Dr Brown gave a clear and unequivocal opinion (at para 1) that:

“A paraglider is a craft that produces lift for support in the atmosphere and hence fits the definition of an aircraft in the Civil Aviation Act 1988. The paragliding wing must be inflated, situated above the pilot, and connected to the pilot by lines and harness to be complete and ready for flight. In my opinion, a paraglider engages in flight, and fits the definition of flight under the Civil Aviation Act 1988 (Cth) for a heavier-than-air aircraft. Power exists when there is a change in energy, and kinetic energy is created in gliders, including paragliders, via the creation of velocities. For a paraglider this is specifically related to the take-off ground run generating the velocity and kinetic energy required for flight. The main aeronautical forces acting on a paraglider in flight are lift, drag and weight, side forces applicable in sideslip scenarios due to the paraglider canopy geometry. Additionally for take-off there are ground forces associated with the take-off run by the pilot to provide the initial velocity. Gliders, including paragliders, do not have thrust. In my opinion the Niviuk Artik 5 paragliding wing, once inflated and connected in the proper configuration with pilot, is an aircraft under the Civil Aviation Act 1988 (Cth).”

  1. Dr Brown had clearly been provided with some documents which have not been tendered in these proceedings and some of her report goes to refutation of opinions contained in those. I would infer from the cross-examination that some of what was put to Dr Brown in cross-examination may have come from those other documents. Essentially, the defendant relies on cross examination of Dr Brown about her opinions in order to persuade me that a paraglider does not “derive support in the atmosphere from the reactions of the air”.

  2. When I say that, I do not suggest there is any onus on the defendant to prove that; the onus is on the prosecution to prove beyond a reasonable doubt to my satisfaction that a paraglider does meet that definition, but in the absence of expert evidence on behalf of the defendant I have to consider the matter on the basis of Dr Brown’s evidence generally. In particular the defendant sought to challenge Dr Brown’s opinion that support is provided by reactions of the air. Even if support is provided it was submitted that it is not “reactions of the air” that provide that support.

  3. A paraglider is made up of two layers of a light fabric which is first directed by the pilot so as to catch the wind in a way which results in ram air filling the gap between its upper and lower fabric surfaces, which are divided by ribs.

  4. Dr Brown indicated that in the photograph showing the defendant and his paraglider attached to Exhibit 2 she was able to observe the gap through which the ram air entered. There does not seem to be any question that that statement by her is correct.

  5. Dr Brown’s evidence confirms that once inflated by ram air a paraglider is a wing. She described that as:

“a three-dimensional object made up of aerofoils, and aerofoils are the cross-sectional geometry that results in the air moving over the geometry faster than the air below the geometry, creating a higher pressure below the wing, causing an upward force, which is called lift” (at para 11)

  1. She went on to say at paragraph 12 - 13:

“Lift provides the support for the paraglider to remain in the air and is specifically generated from the wing’s interactions with the air. The wing is supported by the attached weight (typically the person operating the vehicle) by connecting lines to maintain its shape for flight.

Lift is generated by pressure, which is from the wing’s interaction with the air, and pressure is considered a reaction, as it is caused by the air molecules impacting the surface.”

  1. Dr Brown’s report and her evidence went into some detail in support of these opinion. She was unshaken in cross-examination. I note that she in cross-examination talked about the pressure difference, the velocity moving over the top being faster, she said:

“It comes back to effectively what we call the conservation of mass which is what creates the faster velocity over the top and the slower velocity under the bottom which comes back to Bernoulli’s principles which say the pressure plus half the density velocity squared is constant, is what causes the velocity over the top. The pressure has to be lower at the top with a faster velocity based on Bernoulli’s therefore the air moving slower at the bottom is the higher pressure and it is the result of those two, the pressure differential, the lower pressure above and the higher pressure below which creates that lift force up.”

  1. That is essentially an answer that she gave at the top of p 38 which was describing what it was that was happening in the air which resulted in lift. As I say, she was unshaken in cross-examination about the opinions which I have quoted from her report and there was some cross‑examination about examples that were given by Dr Brown, but essentially her evidence was that it was lift that kept the paraglider in the air, and lift was created by that pressure differential as described in the paragraph I have just quoted.

  2. Two arguments were put against Dr Brown’s clearly expressed opinions about what I could describe as the physics of flight as applied to a paraglider when one is talking about support and the actions or reactions in the air.

  3. First, it was submitted that the term “support” in the definition requires that an aircraft has to be able to be stopped from falling as a consequence of the operation of air. It was submitted that “support” is an absolute term, and that a thing is either supported, or not. This requirement therefore does not include when a glider is descending, because as long as the glider is falling, it is not deriving support from the reactions of the air. It was submitted that the definition of an aircraft only captures an aeroplane, not a non-motorised craft. Dr Brown clearly did not agree with this proposition.

  4. That submission was made notwithstanding the clear intent of the Act and Regulations to apply to nonmotorised craft, as set out in some of the definitions extracted below, and for example in Part 200 of the Civil Aviation Safety Regulations. Some non-motorised craft are required to be registered and pilots licensed (for example a traditional fixed wing glider). In addition, the definition of “aircraft” itself includes both a “machine” and a “craft”.

  5. I was referred to a number of dictionary definitions of the word “support”. I am required to give some meaning to the word in CAA s3, but in my view many of the examples used in the definitions quoted on behalf of the defendant were generally entirely inapposite to aircraft generally. For example, counsel for the defendant referred to a book being supported by a table and the defendant’s evidence made the same point at p 47 where he talked about support is to “withstand without giving way”. He gave the example of a bridge, he said;

“If I drive across a bridge and I believe that’s going to support me that’s a great thing, but if as I was driving across the bridge it began to descend at one metre per second I'd be a little worried.

“In the same way, if I asked my friend to stand on a chair above some lava and I say ‘don’t worry, the chair will support you,’ as my friend sinks into the lava at minus one metre per second they might question what did you mean?”

  1. He said, “That’s the kind of meaning I have from the word support.” It was put to him to accept though that the glider gliding at dawn in still air has a slower rate of descent than a rock in freefall, and he agreed with that, but he gave the other examples such as wing suits or hang gliders or sail planes and said, “Rock is at one end of the spectrum, paraglider is third below a hang glider and a sail plane.” He said, “As to what we call support or not, I suppose, it's an interpretive question under the dictionary.”

  2. Certainly, Mr Pudniks agreed after some further questioning that if you had to pick an object of staying in the air the longest without deriving support, he said, “Rock is probably not your best option.”

  3. I certainly accept that the notion of support as referred to by Mr Pudniks in his evidence and by counsel in his submissions, is one meaning that that word can have. One of the definitions quoted was from the Oxford English Dictionary which was said to include “carry the weight or part of the weight, hold up, keep from falling or sinking”. The primary definition of “fall” is a dropping down by the effect of gravity. The whole purpose of a glider is to slow the effect of gravity, so that a person attached to a glider does not in fact fall, but rather glides.

  4. The defendant in his evidence said that his longest flight in a paraglider had been six hours, during which he travelled 110 km in distance. He could not possibly have done that without the support provided by the reactions of the air in the atmosphere to the wing above his body. The difference between a glider and an aeroplane, for the purposes of the definition of aircraft in the CAA, is one of degree, not of kind.

  5. I accept that a paraglider cannot be supported by actions of the air or reactions of the air in the atmosphere indefinitely, neither of course can an aeroplane without refuelling, so in my view there is no relevant distinction there. The difference between a glider and an aeroplane is one of degree, not of kind.

  6. Accepting as I do the evidence of Dr Brown, together with the ordinary English meaning of the word “support”, I find a paraglider is supported by air in the atmosphere because its whole purpose is to stop the pilot falling only due to the effects of gravity.

  7. The second argument put was whether the support (if I found that to exist) was provided by the reactions of the air. It was sought to draw a distinction on behalf of the defendant between actions and reactions.

  8. I note that Dr Brown, as I have already quoted, used the word interactions and of course one might think that interactions might encompass both actions and reactions, but Dr Brown’s view was clearly that what was occurring when a wing moves through the air displacing the air molecules and causing the difference in pressure referred to was that it is the reaction of the air to the wing that is holding the wing and pilot up.

  9. To describe that as an action rather than as a reaction, as sought on behalf of the defendant, ignores, in my view and based on Dr Brown’s evidence, what is actually happening when a glider moves into the air after reaching an appropriate velocity for the pressure differential to support the wing. Action is taken by the pilot to reach that velocity, once that is achieved the reactions of the air provide support. Dr Brown went into detail in her evidence and in particular in cross‑examination, some of which I have already quoted. She certainly agreed that for a paraglider it is the pilot who does the work to attain flight. I note that she also said at p 36 that it was, essentially, as I have already quoted, that it was the wing and the pilot together who made up the paraglider, but it was the reactions of the air to the moving wing that provided lift, which was the essence of flight. She was entirely unshaken in cross‑examination about that as well.

  1. I accept her opinion. I accept that a wing does derive support in the atmosphere from the reactions of the air, notwithstanding that the support does not permit a vehicle without thrust to remain in the air indefinitely. As Dr Brown said, a paraglider does not have thrust in flight, however its passage through the air creates lift, the pressure differential on the upper and lower sides of the wing are reactions of the air and the fact that there may be other actions of the air, such as for example thermals, does not change the fact that it is reactions of the air to the wing as it moves through the air that allow it to remain aloft.

  2. Indeed, the logical conclusion of the argument put on the defendant’s behalf is that an aeroplane ceases to be an aircraft for the purposes of the Civil Aviation Act if its engine or engines stop.

  3. An aircraft of whatever type which is gliding is deriving support by the change in pressure of the air above and below it as the wing passes through the air. That change in pressure is a reaction. All that is required by the definition is the capability of support, not the fact of support, and it is the essence of flight that a wing does provide support in the atmosphere as long as it is moving through it. A paraglider as set out in Dr Brown’s report is a wing once filled with ram air. In my view the definition is clearly made out and I am satisfied beyond a reasonable doubt that a paraglider is an aircraft for the purposes of the Civil Aviation Act.

Did the defendant operate the paraglider during “flight time”?

  1. There are two relevant regulations under the CAA. The first are the Civil Aviation Regulations 1988 (“CAR”), and the second the Civil Aviation Safety Regulations 1998 (“CASR”). Reference is required to both in order to determine the meaning of “flight time”.

  2. I do note that these regulations have apparently changed (it appears quite significantly, at least in structure) since the last of the offences is alleged to have been committed on 17 May 2021. I have been provided with point in time copies of the regulations for the purpose of determining this case. I am informed that there was no relevant change to the regulations during the period of time covered by these allegations.

  3. At the time of these alleged offences Part 200 made the following provisions in relation to paragliders:

Part 200—Modified application of Regulations to certain aircraft

Subpart 200.A—Preliminary

200.001A Definitions

In these Regulations:

excluded provisions means all of the following:

(a)   Part 1;

(b)   Subpart 11.G;

(c)   Part 39;

(d)   Part 99;

(e)   Part 149;

(f) Part 200.

Subpart 200.B—Exemption from certain Regulations

200.001 Hang gliders, powered hang gliders, paragliders and powered paragliders

A hang glider, powered hang glider, paraglider or powered paraglider used:

(a)   solely in private operations and only for recreational purposes; or

(b)   for flying training for the issue of a pilot certificate;

is exempt from CASR (other than the excluded provisions) if the conditions specified in section 95.8 of the Civil Aviation Orders, as in force from time to time, are complied with.

  1. Section 95.8 of the Civil Aviation Orders provides a scheme for regulating the operation of hang-gliders and other similar craft that include paragliders. The Order exempts people operating such aircraft from the provisions of Part 61 and from licensing under s20AB if subsections 6 and 7 of the Order are complied with. Those provisions, that is 6 and 7, are extensive, but generally require the holding, relevantly, of a pilot certificate, and place numerous restrictions on the flying of such aircraft by holders of such a certificate. For example, and just by way of example, they prohibit flying at night.

  2. It is inherent in the argument put on behalf of this defendant that although the craft he was flying is assumed to be an aircraft for the purposes of that Order, it is not an aircraft for the purposes of the Act under which that Order is made. Such an outcome would be surprising, to say the least, and for the reasons I have given above, I do not consider it to be correct.

  3. Regulations 200.025 and 200.030 CASR provide as follows:

200.025 Flying unregistered aircraft

For paragraph 20AB(1)(a) of the Act, a person is taken to hold a civil aviation authorisation that is in force and authorises the person to perform a duty that is essential to the operation of an unregistered Australian aircraft during flight time if:

(a)   the person holds a pilot certificate granted by a sport aviation body that administers aviation activities in the aircraft; and

(b)   the person operates the aircraft in accordance with the sport aviation body’s operations manual.

200.030 Flying unregistered aircraft—offence 

A person commits an offence if:

(a)   the person pilots an unregistered Australian aircraft; and

(b)   a sport aviation body administers aviation activities in the aircraft; and

(c)   the person does not:

(i)   hold a pilot certificate granted by the sport aviation body; and

(ii)   operate the aircraft in accordance with the sport aviation body’s operations manual.

Penalty: 50 penalty units.

  1. Paragliders are unregistered. Regulation 200.030 clearly contemplates circumstances in which a prosecution could be commenced against a person such as this defendant for the activities in which he accepts he engaged. The maximum penalty for that offence is a fine, whereas the maximum penalty for each of the offences before me is two years imprisonment. That regulation does not make any reference to “flight time” and in any prosecution it would not be necessary for the prosecution to prove that any relevant piloting or operation happened during “flight time”.

  2. The prosecution submits in these proceedings that the fact that the offending alleged before the court could constitute a different offence under the regulations does not affect my determination of whether it also constitutes an offence against section 20AB. Indeed, regulation 200.025 clearly contemplates that it could, essentially providing a deeming provision making lawful what may otherwise be unlawful where a person holds a pilot certificate and operates the paraglider in accordance with the sport authority’s operations manual. It is certainly not unusual for the same conduct to be alleged to breach more than one statutory provision with different requirements for proof. I accept the fact of a regulatory offence being available has no impact on whether this particular offence is made out.

  3. The CAR does not provide a definition of “flight time”.

  4. In order to find a definition for the purposes of s20AB(4) I have been taken to the Dictionary to the CASR which appears in Part 1 of the regulations and which is one of the excluded provisions which applies to, relevantly, paragliders under reg 200.01. The Dictionary provides that:

“flight time has the meaning given by regulation 61.010”

  1. Regulation 61.010 provides (relevantly):

flight time as:

… (c) a pilot in command: see regulation 61.090;

  1. It is an agreed fact that the defendant was a “pilot in command”. Regulation 61.090 provides:

61.090 Definition of flight time as pilot in command for Part 61

A person’s flight time as pilot in command of an aircraft is the duration of a flight for which the person is the pilot in command of the aircraft.

  1. In order to understand reg 61 recourse may also be required to the definition of “duration” of a flight, also in Regulation 61.010 which provides:

duration, of a flight, means:

(a) for a flight in an aeroplane or gyroplane—the time from the moment the aircraft begins moving, whether or not under its own power, in preparation for flight until the moment it comes to rest at the end of the flight; or

(b) for a flight in a helicopter or powered-lift aircraft—the time from the moment the aircraft’s rotor blades start turning until the moment the rotor blades stop turning after the aircraft comes to rest at the end of the flight; or

(c) for a flight in an airship—the time from the moment the airship is released from its mooring until the moment it is tethered at the end of the flight; or

(d) for a flight in a glider—the time from the moment the glider first begins moving in preparation for flight, whether being towed or not, until the moment it comes to rest at the end of the flight.

  1. This regulation refers specifically to a “glider”, and it is argued by the prosecution that a paraglider is a glider for the purposes of that definition and I am referred to regulation 200.001.

  2. Although I was not directed to it during the course of submissions, the Dictionary to the CASR also at the time contained a definition of “glider” as follows:

glider means:

(a) an unpowered, heavier-than-air aircraft that derives its lift in flight chiefly from aerodynamic reactions on surfaces remaining fixed under given conditions of flight; or

(b) a heavier-than-air aircraft that is fitted with one or more engines and that is capable of soaring flight when the engine or engines are inoperative.

  1. I can only assume from the fact that no reference was made to this provision that it is accepted that a paraglider meets that definition and clearly Dr Brown considered that it did. Indeed the terms of her evidence and report appear to make direct reference to it.

  2. During submissions about the relevant principles of statutory interpretation, I was directed to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490, and the requirement to give provisions in legislation and legislative instruments a construction that is consistent with the language and purpose of all of the provisions of the statute (at para 69). In construing a particular provision I must strive to give meaning to every word of it.

  3. It was submitted on behalf of the prosecuting authority that 61.090 is incorporated, but not anything else in regulation 61, noting that 61 generally is not applicable to paragliders.

  4. In particular because there is no other definition of “flight time” in the regulations it is argued that this definition must be intended to apply under section 20AB(4). I accept that this is correct, that is that the definition of “flight time” found in regulation 61 is what was intended to be referred to by section 20AB(4).

  5. This makes a great deal of sense when one is talking about aeroplanes, helicopters, airships, and gliders for which a person is required to be licensed, but I need to determine whether the criminal sanction in section 20 AB applies to paragliders at all.

  6. The item operated by the defendant was a paraglider as defined in regulation 200.001. Accordingly, the paraglider is exempt from CASR except for the excluded provisions. It is not in dispute that the excluded provisions do not include Part 61.

  7. However, section 2C of the CAR provides as follows:

2C How to read CASR

(1) CASR is to be read with, and as if it formed part of, CAR.

(2) However, if there is any inconsistency between CAR and CASR, CASR prevails to the extent of the inconsistency.

  1. One of the provisions of CASR that does apply to paragliders is Part 1 (Reg 200.001A). 1.004 provides as follows:

1.004 Dictionary

(1)   The Dictionary at the end of these Regulations consists of 2 parts.

(2)   Part 1 contains:

(a)   definitions of certain expressions; and

(b)   signpost references to expressions that are explained in Part 2 or elsewhere in these Regulations.

Note: A signpost reference to a definition or an explanation of an expression that is elsewhere than in the Dictionary (for example, ‘ATSO authorisation —see paragraph 21.601(2)(b)’) is not included in the Dictionary unless the definition or explanation of the expression applies outside the regulation in which it occurs. Many expressions are defined for the purposes of a particular Part, Subpart or Division, and signpost references to such definitions are generally not included in the Dictionary.

(3)   Part 2 consists of numbered clauses that explain certain other expressions otherwise than by means of definitions.

(4)   Unless the contrary intention appears, the definition or explanation of an expression in these Regulations applies to each use of the expression in these Regulations.

(5)   The Dictionary is part of these Regulations.

  1. Accordingly it is argued that notwithstanding that part 61 does not apply to a paraglider, as the Dictionary does apply to a paraglider, and any relevant portion of Part 61 is incorporated by that fact. I have already set out the definition of “flight time” which appears in the Dictionary, and which refers a reader to part 61 .

  2. It is very clear that Part 61 could not apply to pilots of paragliders generally. Part 61 sets out the licensing scheme for pilots and flight engineers of registered aircraft (61.005). A paraglider is not a registered aircraft. Nevertheless, it is argued that because meaning must be given to section 20AB(4), the definition of flight time for a pilot in command, which refers a reader to regulation 61.090, must apply for the purposes of s20AB.

  3. The alternative interpretation is that not every piloted aircraft is operated during “flight time” as set out in the regulations, and it is only when they are so operated that section 20AB as a penal provision with imprisonment as a potential penalty comes into play.

  4. However, such an interpretation in my view is not harmonious with the objects of the Act. It is not harmonious with other provisions of it, such as, just by way of an unrelated example, the provision in reg 101.47 exempting balloons, kites and model aircraft from s 20AB. I note that that was extracted in Dr Brown’s report at p 20. And it is also not harmonious with the provisions which specifically exempt paragliders from the operation of s 20AB in certain circumstances.

  5. Taking into account the breadth of this very extensive legislative regime, the legislature has clearly sought to permit the definition of aircraft to include objects such as paragliders, and to extend the operation of the Act and regulations to them except as specifically exempted. It has sought to impose a system requiring training and certification, and the operation of paragliders within certain specified parameters, that is consistent with the objects with the Act. While I initially considered the interpretation argued for by the prosecuting authority to be a somewhat tortured path to the inclusion of paragliders in the penal provisions of s 20AB, having had the opportunity to reflect upon the Act and regulations as a whole I am satisfied that that is indeed their effect and that that is also the intention of the legislature.

  6. I do note that on behalf of the defendant it was argued that the definition of “flight” in the Civil Aviation Act is relevant to the meaning of flight time and that that does not apply to a paraglider. I do not consider that the definition of flight in the Act assists in the determination of this matter at all. Section 20AB clearly only applies to the operation of the aircraft during flight time. If the defendant’s activities do not come within that definition then the offence cannot be made out. If they do then in my view he is clearly guilty of these offences.

  7. I find that the definition in Part 61 of the regulations is satisfied by the glider which is made up by the combination of a pilot and paraglider wing and harness, notwithstanding that the pilot is not required to be licensed as set out in the balance of Part 61. On each of the occasions the subject of a Court attendance notice the defendant was operating the paraglider during flight time, the paraglider is an aircraft, and I find the defendant guilty of each offence.

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Decision last updated: 17 November 2023

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