As I have said in previous articles, public ignorance has until now been the Department's best ally. The Department has closed its eyes and ears for so long to all evidence that did not favour its policies, of which there was a great deal. It continually trotted out its trusted "experts" to defend those policies in the AAT. These experts and their evidence will shortly be exposed to unprecedented scrutiny, and I assure you that it is long overdue. The team of experts supporting my case is highly qualified in the fields of aviation, colour vision and the law.
The final preparations of my case are under way and we are ready to proceed. Our affidavits were lodged early last year with the Tribunal and the Department has had all the time in the world to consider them and lodge its own evidence. Needless to say, it hasn't done so. In essence, the evidence lodged on my behalf last year consisted of the following:
- Testimony by myself on the un-usability of the colour coded navigation light system in the task of collision avoidance.
- My analysis of the fundamental visual components of orientation in the three-dimensional, dynamic environment of the night sky, in particular the role of fixity of relative bearing and of perception of motion-in-depth in the task of collision avoidance.
- A comprehensive Criticism of the Department's meetings, deliberations, correspondences, publications and general approach to the colour vision issue over the last sixteen years. (This particular exercise has been an education for me in coming to grips with the bureaucratic mentality.)
- Testimony from Dr. David Cooke (of AOPA) on his flying experience and the results of an AOPA sponsored trial in which 80% of colour defective pilots passed a practical night flying exercise involving coloured lantern signals of the type used from control towers.
- Testimony from an ex-Air Force Aviation Med Doctor on the poor quality of research work carried out by and on behalf of the Department to substantiate its Colour Vision Policies.
- Testimony from a senior researcher in a N.S.W University, a lecturer in Optometry, criticizing
- Department-sponsored research into the usability of the colour coded navigation light system.
- Testimony from a senior Medical aviator from the Navy that he has never in his own experience used the colours of the navigation lights of other aircraft at night to avoid collisions, even when flying in close formation in high speed jet aircraft.
- Testimony from a colour defective pilot and qualified solicitor who failed some years ago to beat the Department in the AAT, who was then considered "unsafe" and who now legally flies at night and ironically, instructs at night.
The above represents a very sketchy summary of the evidence so far put by my side to the Tribunal. However, since the handing down of the jurisdiction decision, it has become clear that the whole case will revolve around the meaning of the "Colour Vision Standard" (which is not a STANDARD), as laid down in ANO 47.3 and which states: "The applicant shall have the ability to distinguish readily those colours used in aviation, the perception of which is necessary for the safe performance of his duties".
What follows is a draft of further submissions to be made, offering a means of interpreting the word "SAFE" as it is used in ANO 47.3.
SUPPLEMENTARY AFFIDAVIT OF ARTHUR MARINUS PAPE
The purpose of this affidavit is to clarify and expand on the points raised in my first affidavit in light of the decision handed down by the Tribunal on the Jurisdiction matter.
- Paragraph 18 the Tribunal's reasons for decision on the jurisdiction matter states that: "it (the Tribunal) must take into account any evidence which the applicant adduces which relates to his colour vision or which may establish what degree of ability to perceive particular colours is necessary for the safe performance of the duties of the holder of a commercial pilot's licence".
- The "Rules of the Air" are laid down clearly in the Air Navigation Regulations, Part XI, the A.I.P. and Visual Flight Guide, and for the purposes of this case we need only examine those rules that relate to the conduct of flight under the Visual Flight Rules at night. The word "Safe" as used in the wording of the Colour Perception Standard (ANO 47.3.1) is difficult to define. I put it that the “Rules of the Air", as laid down in the above publications provide the only framework upon which considerations of safety can be made. If a pilot can demonstrate a consistent ability to comply with the Rules of the Air, notwithstanding his clinical colour vision status, then that pilot may be said to pass the requirements of ANO 47.3.1. Conversely, if it can be demonstrated that colour perception has no practical or theoretical contribution to make towards a pilot's ability to comply with the "Rules Of The Air" then ANO 47.3.1 ceases to have any meaning whatsoever. This notion of "Safe" is intended only for the purpose of our examination of ANO 47.3 and is self-evidently totally inappropriate for application to other medical standards. Colour defective vision is for all intents and purposes a permanent, unchanging feature of the visual powers of each affected individual and is not related to any increased risk of sudden death or major catastrophic debilitation.
- Under the Visual Flight Rules a pilot in command is required to maintain separation minima from other aircraft. These are specified in the AlP RAC/OPS-1-1 and read as follows:
- Below 5000 feet:
Flight visibility of 5000 metres,
Horizontal separation of 600 metres,
Vertical separation of 300 feet
- Above 5000 feet:
Visibility 8 km.
Horizontal 2000 m ..
Vertical 1000 ft.
- Maintenance of these separation minima is ordinarily the responsibility of the pilot in command and is performed on the basis of a mental estimate of vertical and horizontal distances. Colour perception plays no role in making such estimates. There has never been any suggestion made that colour vision deficiency might reduce a pilot’s ability to make these visual judgments necessary to comply with the above requirements.
- The rules laid down for the approach to an aerodrome and the conduct of a flight within the circuit of an aerodrome are clear and unambiguous and may be found in the VFG at section 29.1 onwards. There are specific rules governing radio calls to be made on approach to a circuit and within the circuit. There are rules to be observed regarding overtaking of other aircraft established in the circuit. All such rules present absolutely no problem to the colour defective pilot, since his colour vision defect in no way impairs his ability to make judgments of relative bearing and motion in depth, the two fundamental components of orientation in a dynamic three-dimensional environment.