By Paul Clough, Solicitor 

Some years ago I had a client who was a farmer who owned 25,000 acres on the Darling Downs in Queensland. The farmer was growing a good crop of weeds. He wanted to control those weeds with herbicide. He decided to hire a local crop duster. An arrangement was struck whereby the croppie would engage a local commercial pilot with an ag rating and, using the farmer’s own cropdusting aircraft, the weeds would be sprayed with herbicide three to four times a year. The cropduster had an AOC and, for 10 cents an acre, would allow his AOC to be used to give some semblance of legality to the arrangement.

The farmer realised that he was expending about $10,000 per year on a cropduster for the privilege of what appeared to be little more than a charade. The farmer was using his own aircraft, his own fuel and paying his own pilot to spray his own property.

The farmer decided that he wanted to employ the pilot directly to spray the weeds. Without the crop duster as a middle man. He sought advice of the Queensland Department of Primary Industries (DPI). The friendly bureaucrat at DPI said, “You must have an AOC issued by CASA to spray your weeds.”

So off to CASA to get an AOC. An unknown and nameless worthy in the regulator told our farmer, “you cannot get an AOC as you do not run a business in aviation.” About this time our farmer consulted his garden variety suburban solicitor.

Let us pause in this unfolding tale of obfuscation and consider the application of the law to the facts. The crop duster initially is ‘lending’ his AOC to the farmer. That contravenes s27 (8). First legal stumble by a participant in this deal. The farmer was going to spray his own property. He is not engaging in a business in aviation. He is permitted to do so by CAR 2 (7) (d) (iii). Therefore, CASA was right: the farmer does not need an AOC.  When this was put to the DPI, it will not be moved. The friendly farmer must not spray his weeds without an AOC. What is more, that organization has a state Act, the Agricultural Chemical Distribution Control Act (ACDC). s15 of that Act is a recitation of bureaucratic nonsense and deserves reproduction in full:

‘S15 (2) A person may apply for, and hold, an aerial distribution contractor licence only if the person has an aerial work licence, endorsed to conduct agricultural operations, issued under the Civil Aviation Regulations or Orders (Cwlth).’

There is no such thing as an aerial work licence. Endorsements are frequently entered onto a pilot’s licence. There is no legal mechanism to endorse ‘agricultural operations’ onto anything. In short, the parliamentary draftsman has created an impasse.

If no person can obtain this ACDC state of Nirvana, no cropduster is acting within the strict interpretation of the law. To make matters worse, failure to obtain an ACDC licence renders one liable to a criminal penalty, pursuant to  s 39 of the State Act.

The handling, distribution and the spreading of chemicals is without doubt within the power of a state. The Commonwealth does not have a direct power to control the actual spreading of chemicals anywhere. The fact that, in the case of crop dusting or crop spraying, the chemicals are distributed from the air does not alter the control issue. After all, the flying of the aircraft may be an aviation safety issue for the Commonwealth, but the actual spreading is not an aviation matter, merely a distribution matter. From this, it can be argued that whether or not the pilot, or the farmer, has an AOC is immaterial to the distribution issue. 

It is time to bring in another couple of players from stage right. Enter the local member, who incidentally is a member of the opposition in the Queensland state parliament. With him comes an important personage: the Minister for Primary Industries.

The Minister has an entourage of advisers, legal unit and departmental flunkies. An appeal to the local member is given short shrift by the bureaucrats behind the minister.

An apparatchik on the minister’s staff indulges in a little legal interpretation and announces, in writing, that the farmer can get an AOC and that this is the basis of an ACDC contractor’s licence. So don’t waste the Minister’s time with this silly complaint. Is it little wonder that the public, at times, consider that all politicians and bureaucrats are buffoons and less than useless? 

A harshly worded letter from the garden variety suburban solicitor to the Minister draws blood. A departmental professional bureaucrat is now made aware of the problem. This man agreed that one cannot get an aerial work licence but he opines that, in the past, it has been accepted that if one held an AOC that was good enough to issue a contractor’s licence as the state legislation was worded. He also agreed that CAR 2 provided the farmer with statutory approval to spray his weeds with herbicide in his own plane on his own property. The man stated that the legislation was going to be amended to reflect the concerns raised. In a conversation with another bureaucrat, in the department of Primary Industries, in the light of the comments raised to date, it was unlikely that the farmer would be prosecuted for any potential breach. It is to be noted that none of these bureaucrats confirmed any of the above conversations in writing.

One would like to say that this is the end of the drama. Act II may commence when the amended legislation is gazetted. Who knows what drivel will be written? After all there are at least three and perhaps four sources of conflict and confusion between the present Act and the amendment: the man, the legal unit, the apparatchik, the parliamentary draftsman and, perhaps, the Minister. Not one of those worthies has any connection with or input from a person with aviation qualifications.

A recitation of this legal matter highlights the appalling conflicts that exist in aviation law at the coal face of actual operations in both the Commonwealth and in a State. Sadly, few state governments accept that because of the restricted nature of Commonwealth power, each state has some direct measure of control over civil aviation and does not need the imprimatur of the Commonwealth to control the business of aviation within each state.

Watch this space...