Bills Digest No. 148 2002-03
Civil Aviation
Amendment Bill 2003
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Commets
Endnotes
Contact Officer & Copyright Details
Passage History
Civil
Aviation Amendment Bill 2003
Date Introduced:
27 March 2003
House: House of Representatives
Portfolio: Transport and Regional
Services
Commencement:
The Act itself commences
on Royal Assent. However, the earliest main amendments commence
on 1 July 2003, with a second round commencing 4 months after
Royal Assent.
There two main purposes to the Bill:
- to abolish the CASA board and bring governance of CASA more
under the control of the Transport Minister, and
- to revise various CASA investigatory and enforcement powers,
particularly regarding suspension and /or cancellation of
licenses.
Background
The Civil Aviation Safety Authority (CASA) was
established in July 1995 as an independent statutory authority
under section 8 of the Civil Aviation Act 1988
(the Act).
CASA was formed out of the
old Civil Aviation Authority, which was split in two,
with service provider functions being taken up by the new
Airservices Australia.(1) Under section 9 of the Act,
CASA is responsible, amongst other things, for the safety
regulation of civil air operations within Australian territory, the
operation of Australian registered aircraft, and for the promotion
of high standards of aviation safety.
CASA is governed by a Board of Directors , appointed by the
Minister for Transport and Regional Services. An Executive Team of
7 is responsible for strategic decision making, supported by a
broader Senior Management Group. Within CASA, the Director of
Aviation Safety is the chief executive officer and a member of the
Board. The Director takes overall responsibility for CASA
administration and operational activities. The Board decides the
objectives, strategies and policies to be followed by CASA and
ensures that CASA performs its functions in a proper, efficient and
effective manner. CASA, the Department of Transport and Regional
Services (which includes the Australian Transport Safety Bureau)
and Airservices Australia constitute a tripartite structure
responsible for providing safe aviation within Australia, each with
separate and distinct functions.
CASA is no stranger to management
controversies and personality conflicts within its governing Board.
After the current Federal Government took office, the CASA Board
became the centre of some fierce debates and public campaigns
against it. Following wide criticism of the Board, the then
Minister for Transport and Regional Services Mr John Sharp
facilitated changes to its membership.(2) On 6 May 1997,
after new legislation expanded the CASA board to seven positions,
Mr Dick Smith was appointed CASA Deputy Chairman under Chairman
Justice William Fischer. Mr Laurence Foley later joined the Board.
In June, Ms Gabi Hollows and Captain Molloy retired to be replaced
by Dr Paul Scully-Power and Mr Bruce Byron.
On 26 August 1997, the Broderick/Willoughby
report into the relationship between the Director of Aviation
Safety and the CASA Board made recommendations on corporate
governance. On 26 September 1997, CASA Director Mr Leroy Keith left
after the Board passed a no-confidence motion in his management
strategy to be replaced by Mr John Pike. Chairman Justice William
Fischer and member Dr Clare Pollock both resigned in protest at the
Board's handling of the former Director. On 24 December 1997, Mr
Smith was appointed as Chairman of CASA, with Dr Scully-Power as
Deputy Chairman, with Mr Michael Ryan, Mr Tony Pyne and Ms Janine
Shepherd joining Mr Bruce Byron and Mr Laurence Foley on the Board.
On 1 July 1998, Mr Mick Toller became the new Director of Aviation
Safety.
Following a fatal seaplane crash north of
Sydney in July 1998, Stephen Skehill was commissioned by the
Minister to review CASA's regulation of the seaplane s operators,
Aquatic Air. Mr Skehill s report(3) was completed in
October 1998 and tabled in Parliament in February 1999. The report
found that a small number of CASA actions were defective and not to
be preferred, although not improper, including its failure to
suspend Aquatic Air. The then CASA Chairman, Mr Dick Smith, was
reported as believing that the Skehill report showed the continuing
existence of deficiencies at CASA.(4) However, Mr Smith
resigned in March 1999 amid allegations of collusion between the
CASA board and airlines over a trial of low flight level airspace
management. Ms Janine Shepherd resigned on 23 March 1999, while Mr
Byron's term of office expired on 30 June 1999. In July 1999, Ms
Megan Cornelius was appointed to the Board and Mr James Kimpton
became Deputy Chairman with Dr Scully-Power now as Chairman.
In September 1999, the Senate forced the
tabling of a second report by Mr Skehill on the appointment of a
CASA Board member, Mr Laurie Foley, as Assistant Director, Aviation
Safety Compliance. This (second) Skehill investigation into CASA
corporate governance cleared Mr Laurie Foley over selection
processes. On 19 June 2000, Mr Peter Harris, Secretary of the
Department of Transport and Regional Services, joined the
Board.
In November 1999 the Australian National Audit
Office (ANAO) released
Aviation Safety Compliance by CASA. While concluding that
CASA was a competent agency, the report noted continuing turmoil
within CASA that warranted stable management processes. CASA agreed
with all of the 13 recommendations relating to safety targets and
corporate plans so that procedures and documentation adhered better
to regulations. A follow-up ANAO audit
report found in mid-2002 that CASA's management of aviation
safety compliance systems had improved with only three new matters
arising, although risk identification processes had stalled.
In February 2000, the Federal Government
appointed a new consultative body, the Aviation Safety
Forum (ASF), to provide strategic advice to CASA on matters of
cultural change, cost structures, the Regulatory Reform Plan
(discussed in next section) and policy aspects, and serve as a link
to industry interests.
In May 2000, the International Civil Aviation
Organisation concluded that Australia's air safety system was
generally satisfactory after a safety audit of CASA found some 16
action points. A copy of the Action Plan to address the
recommendations may be found on-line at: www.dotrs.gov.au/avnapt/ipb/icao/usoap.htm
. Such
outcomes were reassuring in a time of continuing change and
Ansett's later eventual demise, amid media claims that CASA was
ill-equipped in skills and culture to identify and correct problems
and issues that may cause a major air disaster.(5)
In October 2000, the Senate Rural and Regional
Affairs and Transport Legislation Committee produced a
report on CASA s actions in
relation to another small aviation operator, ARCAS Airways. The
report contained details about concealment of unofficial aircraft
defect records and led to recommendations for legal prosecutions
and the creation of a new position of the Deputy Director of
Aviation Safety (Mr Bruce Gemmel) within CASA. CASA responded by
taking action on the recommendations and demoted Mr Foley as its
head of aviation safety compliance.(6) On 22 December
2000, Mr Foley resigned, to be later 'replaced' by Mr Mike
Williams. Mr Peter Harris had left the Board on 19 June 2000, while
Mr Pyne and Mr Ryan completed their terms in December 2000.
In mid 2001, the CASA Chairman Dr Paul
Scully-Power retired and was replaced by Mr Ted Anson, then
Chairman of the Australian Maritime Safety Authority (AMSA). The
Government asked Mr Anson to consider the existing CASA Board
structure and to report on whether it was appropriate for safety
regulation to be a statutory authority. The report was completed in
mid-2002 but not publicly released. The main features of the Bill
were foreshadowed in the Minister's
announcement of 18 November 2002. These proposed changes seemed
to have generally been seen as a move in the right direction by the
aviation industry.(7)
Separate from the various internal CASA
governance issues discussed in the previous section, there remain
proposals by independent parties for the general reform of aviation
safety regulation. In particular, the role of CASA as law maker,
administrator and enforcement regulator has brought about
criticisms of conflicts of interest when dealing with the aviation
industry. One proposal titled A New Approach to Aviation
Safety, prepared by a pilot, Mr Bill Hamilton, involves a
Civil Aviation Administration to perform most of CASA's technical
functions and inspections, reporting to the Minister. If adopted, a
degree of self-regulation would apply to general aviation bodies,
sports aviation organisations and aerial work operations. A
separate Aviation Council comprising aviation industry participants
would be responsible for developing policy, risk assessment,
legislation, regulatory reviews and other matters that currently
occupy CASA resources.(8)
The vagaries of air safety regulation and its
long and turbulent history in Australia have proved perplexing. A
little history of the attempts towards air safety regulatory reform
in Australia is pertinent. A 1987 review was followed by a 1990
harmonisation with New Zealand in relation to Civil Aviation
orders. The 1993 regulatory structure validation project (RSVP) was
later scrapped, while a 1996 regulatory framework program (RFP) was
not completed. A corresponding number of past bills have not
managed to pass through the Parliament, such as the Aviation
Legislation Amendment Bill 2001. In 1999, the Regulatory
Reform Program (RRP) began and now CASA aims to deliver the RRP by
December 2003 for final Parliamentary approval.
The aim of the RRP exercise is to deliver
'safety through clarity' with fair and effective regulation based
on best practice of international standards and an industry
knowledge base. As air safety culture has generally been
conservative, given aviation technologies, its nature has given
rise to a diversity of often-polarised views. Current world issues
affecting the debate on air safety include the gap between general
aviation and regular air passenger and freight transport training,
the growth of management skill requirements, flight automation and
training skills, age limits, aircraft pilot type ratings, security
aspects and medical standards. Some of these issues might arise in
the debate of related Bills(9) currently before
Parliament and / or when new regulations are tabled in Parliament
later this year.
Overall, the Bill will place CASA more
directly under Ministerial supervision than previously applied. It
is designed to introduce greater procedural fairness in instances
of the suspension and /or cancellation of an aviation license.
Finally, the introduction of a demerits scheme aligned with
self-reporting would seem to shift some onus onto the aviation
industry to ensure compliance with appropriate safety
standards.
Items 1-9 all make various
changes to existing subsection 3(1) of the Civil Aviation Act 1988
(the Act), Subsection 3(1) contains various definitions for terms
used in the Act. Notably, items 1, 3 6,
7 and 8 repeal definitions relating to
the CASA board. As the board is being abolished, these terms are no
longer required.
Items 10-12 amend existing
sections 12 and 12A. These changes increase the Minister s ability
to control how CASA carries out its statutory functions and uses
its powers. Currently, the
Minister may only:
give general directions as to the performance of CASA s
regulatory function (section 12); and
notify CASA of the Minister s views as to the appropriate strategic
direction for CASA and the manner in which CASA should perform its
functions (section 12A).
CASA must currently comply with a section 12
direction but must only take into account section 12A
notifications.
Item 10 will insert
new subsection 12(1A) which will allow the
Minister to direct CASA regarding consultation matters.
Essentially, the Minister will be able to instruct CASA how to
consult, what to consult about, and who to consult with. It is not
explicit whether the Minister can prohibit CASA from, for example,
consulting with certain bodies, but it seems likely that the power
could include this. It is worth noting that existing subsection
12(2) only allows any Ministerial directions to CASA
regarding the performance of its regulatory function [to
be] of a general nature [emphasis added]. Regulatory
functions are those listed in existing subsection 9(1) and they
include matters such as developing and promulgating appropriate,
clear and concise aviation safety standards .(10) If
part of the process of developing such standards includes
consultation with the aviation industry, it is arguable that there
is potential for a new section 12(1A) direction to
be inconsistent with the general nature limitation in existing
section 12(2) and thus the direction would be
unlawful.(11) However, whether any particular
new section 12(1A) direction was unlawful in this
regard would depend on its specific content and application.
Item 11 inserts new
subsection 12A(1A) to clarify that under existing section
12A the Minister cannot include in his / her notification
concerning CASA strategic direction views about how a particular
case or particular individual authorisation holder should be dealt
with.
Item 12 amends section 12A(2)
to require CASA to act in accordance with the Minister s notified
views, rather than the current take account of those views. This
eliminates the significant discretion that CASA currently has in
deciding how to reflect the Minister s views in terms of its
strategic direction etc.
Item 13 inserts new
sections 12C and 12D.
New section 12C allows the
Minister to enter into an agreement with the CASA Director in
relation to the performance of CASA s powers and the execution of
CASA s functions. While the Bill provides no details on the scope
of such agreements, the Explanatory Memorandum comments
that(12)
such an agreement is likely to cover CASA s policy
direction, priorities and performance standards
New subsection 12C(4)
provides that an agreement with the CASA Director cannot have the
effect of requiring CASA to perform a function or exercise a power
in relation to a particular case or a particular holder of a civil
aviation authorisation . The CASA Director must also advise the
Minister of any matter that may prevent them from complying with
the terms of the agreement.
New section 12D allows the
Minister to direct CASA to report to the Minister or to the
Departmental Secretary about specific arrangements or matters.
Presumably this is to ensure CASA is aware that the Minister /
Secretary must be kept completely informed about sensitive
issues.
Item 14 inserts new
subsections 28BA(4)-(5). Existing section 28BA deals with
the conditions that attached to the issue of an airworthiness
operating certificate (AOC). If a condition is breached, CASA may
suspend or cancel the AOC. New subsection 28BA(4)
will require CASA to notify the holder and allow it a reasonable
time to show cause why CASA should not proceed with a suspension or
cancellation. If after this, CASA proceeds, new subsection
28BA(5) requires it to include its notification to the
holder that the holder has a right to obtain an automatic stay
under the new section 31AA (see item
17).
Item 15 inserts new
Divisions 3A-3D which deal with various CASA investigatory
and enforcement functions.
New Division 3A (new sections
30DA-DJ) is headed Serious and imminent risks to air
safety . The Explanatory Memorandum prefaces the Division
3A amendments by stating:(13)
Currently, CASA may immediately suspend a licence
or certificate (other than an AOC) under regulation 268 of the
Civil Aviation Regulations 1988, and an AOC under s.28 of the Act.
The new Division 3A amends these arrangements by encompassing the
immediate suspension of all authorisations under the Act and the
regulations. Regulation 268 will be repealed by regulation
amendment.
Note that the above reference to section 28 in
the Explanatory Memorandum appears to be an error. It is
in fact subsection 28BA(3) that allows CASA to suspend or cancel an
AOC.
New section 30DB provides
that a holder of a civil aviation authorisation
(CAA)(14) must not engage in conduct that constitutes,
contributes to, or results in, a serious and imminent risk to air
safety .(15)
Where CASA has reason to believe that a holder
of a CAA has engaged, is engaged or likely to engage, in conduct
that contravenes new section 30DB (ie represents a
serious and imminent risk to air safety ), they may
suspend the CAA: new subsection
30DC(1).(16) This serious and imminent risk to
air safety requirement before CASA can suspend or cancel a CAA
seems to be a more onerous threshold than under the current
subsection 28BA(3) or regulation 268. Subsection 28BA(3) just talks
about a breach of an AOC condition and regulation 268 it is where
there is serious risk to air safety
.
A new subsection 30DC(1)
suspension only lasts for 5 business days after the holder is
notified as mentioned above, unless CASA applies to the
Federal Court within this time for confirmation of the suspension:
new subsection 30DC(3).
The suspension power can be utilised even if
CASA has issued a show cause notice under another part of the Act:
new section 30DD. In practice, this means that the
due process required under other parts of the Act do not restrict
the operation of new section 30DC. Similarly, the
issuing of a stay in relation to an earlier decision to vary,
suspend or cancel a CAA does not affect a suspension under
new section 30DC.
Following a confirmation application by CASA,
if the Federal Court is satisfied that there are reasonable grounds
to believe that a CAA holder is engaged, or likely to
engage,(17) in conduct that contravenes new
section 30DB, it must make an order which in effect
prohibits the holder from doing anything they would otherwise be
entitled to do under the (suspended) CAA: new section
30DE(2).(18) The length of the order is to be
guided as to what the Court thinks reasonable for CASA to complete
an investigation into the conduct and surrounding circumstances
that gave rise to the CASA's decision to suspend under new
section 30DC. However, the Court cannot make the order
longer than 40 days, subject to new section
30DF.
New section 30DF allows
either CASA or the holder to apply to lengthen (up to an additional
28 days) or shorten the order. The Court may only vary the order
period once. CASA may seek only one extension. The Court may hear
two opposing applications together.
New section 30DG obliges CASA
to investigate the conduct and surrounding circumstances that gave
rise to the CASA decision to suspend an authorisation under
new section 30DC. The investigation must be
completed by the end of the Court order, but presumably this
includes the provision for the potential extension of an order
under new section 30DF. It is unclear whether
there are any legal consequences regarding validity of the
investigation or subsequent enforcement action if CASA fails to
meet this deadline.
If the completion of a new section
30DG investigation gives CASA reason to believe that a
serious and imminent risk to air safety would exist unless the CAA
were varied, suspended or cancelled, it may issue a further show
cause notice not later than 5 business days after the new
section 30DE Court order ceases to be in force:
new section 30DH. This step may only be
taken if the CASA concerns are related to the original reason for
new section 30DC
suspension.(19) The notice must give the holder a
reasonable time to reply and show cause why the CAA should not be
varied, suspended or cancelled. The suspension of the CAA continues
in force for 5 business days after the date specified for the
holder to show cause. If after this, CASA still believes there
would be a serious and imminent risk to air safety etc and the
grounds are again related to the new section 30DC
suspension, it may vary, suspend or cancel the notice. There
appears to be no maximum time limit on the suspension period.
New Division 3B (new
section 30DK) is headed Enforceable voluntary undertakings
. The Explanatory Memorandum comments:(20)
Division 3B [is]... modelled on s.87B of the
Trade Practices Act 1974.[It] will allow CASA to accept a
written undertaking from an authorisation holder in connection with
a matter arising under the Act or the regulations in relation to
which CASA has function or power under the Act or the regulations
the proposal for EVUs has been revised to take into account
recommendations made by the Senate Rural and Regional Affairs and
Transport Legislation Committee which examined the Aviation
Legislation Amendment Bill (No. 1) 2001.
Under new section 30DK, an
enforceable voluntary undertaking (EVU) may only last for 6 months,
though this may be renewed, and they can be varied, or withdrawn
from, if CASA agrees. Details of each EVU must be published on the
Internet. EVUs cannot have the effect of requiring holders to pay
money to CASA.
If CASA considers that a person has breached
any terms of an EVU, it may apply to the Federal Court for an
appropriate order. An order may include directing the holder to pay
the Commonwealth an amount of up to any financial benefit that the
person has obtained directly or indirectly from, and that is
reasonably attributable to, the breach of the undertaking.
New Division 3C (new
sections 30DL-DR) is headed Protection from administrative
action for voluntary reporting . As its name implies, this division
creates a scheme whereby a CAA holder may be protected
from administrative action (suspension, variation or cancellation
of their authorisation, or the giving of an infringement notice) if
they voluntarily report certain breaches. However, it does
not confer any immunity from prosecution for a criminal
offence.
The specifics of the reporting scheme are to
be established by regulations: new section
30DN.
New section 30DO prevents
CASA from taking administrative action in respect of a reportable
contravention if the relevant CAA holder can prove(21)
to CASA that they reported the contravention to a nominated
person(22) within 10 days, providing this is before an
infringement or show cause notice was issued. Reportable
contraventions exclude breaches of regulations that are deliberate,
or fraudulent, or cause, or contribute to an accident or serious
incident(23) or a breach that is specified in
regulations for the purpose: new section 30DL. A
new section 30DO protection can be utilised by a
CAA holder only once every five years: new section
30DQ.
New section 30DR provides
some protection against self-incrimination in relation to voluntary
reporting. The fact the report was made and the contents of that
report cannot be used as evidence in any criminal proceedings
against the CAA holder.(24) However this protection only
applies if, at the time the proceedings commence, the contravention
is still reportable within the meaning of new section
30DL. Presumably therefore if clear evidence emerged,
after the voluntary report was made but before the criminal
proceedings, that the contravention was deliberate rather than say
negligent, the holder would not protected.
New Division 3D is headed
Demerits points scheme .
The various offences to which the demerit
scheme will apply, and the number of demerits points applying to
each offence, are to be prescribed in regulations: new
section 30DT.
New section 30DV applies
where a suspension or cancellation under new Division
3D would have applied to an authorisation had the
authorisation not already been cancelled through an earlier action
by CASA. In cases where this first cancellation is later set aside
by the Administrative Appeals Tribunal (AAT), new section
30DV allows for regulations to provide that a Division 3D
suspension or cancellation then applies.
New section 30DY deals the
situation where the holder has their CAA suspended for the first
time under the demerit point scheme. Suspension occurs where the
holder incurs 12 or more demerit points in relation to the same
class of CAAs (see further below regarding the meaning of class)
over a three year period. In such cases, CASA must issue a notice
suspending all of the holder s authorisations in that
class.(25) The length of the suspension is on a sliding
scale according to how many demerit points the holder incurred:
12-15 points - 90 days
16-19 points -120 days
20 or more points - 150 days
Thus if a person had 11 points and then
incurred another 5 points through a prescribed offence, they would
be suspended for 120 days.
A holder whose CAA has been suspended or
cancelled under the demerit scheme may apply for a reinstatement:
new section 30EF. CASA may choose to reinstate a
particular CAA only if it is satisfied that the suspension or
cancellation of that authorisation would cause the holder severe
financial hardship because they are not able to earn their
principal or only income without it. CASA may impose conditions on
the reinstatement as it thinks appropriate. Presumably new
section 30EF can also be used to reinstate all CAAs within
a class.
Regulations must prescribe classes to which a
particular [CAA] belong[s] : new section 30DU.
This last point relates to new section 30DX, which
provides that demerit points are incurred in relation to the class
of authorisations to which the offences relates . While the wording
of the Bill is not very clear on the role of these classes, the
Explanatory Memorandum states that:(26)
when the specified maximum number of points is
reached or exceeded for that class, all the authorisations in that
class will be suspended or cancelled. For example, where an
authorisation holder accrues several points against their
commercial pilot licence, and several points against their private
pilot licence, all their pilot licences will be subject to
suspension or cancellation. However, if the person also holds
maintenance authorisations, for example, those authorisations are
not suspended or cancelled.
Where a holder has previously been suspended,
less demerit points are required before a second suspension takes
place - only 6 demerit points in relation to the same class of
authorisations over three years is required. The suspension periods
for the second occurrence are:
- 6 9 points - 90 days
- 10-13 points - 120 days
- 14 or more points - 150 days
Note that all demerit points that contribute
to a suspension or cancellation are to be disregarded for the
purposes of subsequent calculations of demerit points: new
section 30EE.
New section 30EB provides
that where a CAA is suspended under another provision of the Act or
the regulations, the suspension period under the demerits scheme
will not start until the other suspension ceases. Regulations may
also be made for other situations to avoid the concurrent serving
of suspensions.
Under new section 30EC, if a
holder has previously had a CAA in a particular class suspended
twice, the next time they exceed the demerit points limit, the
authorisation must be cancelled by CASA for 3 years. The limit is 6
demerit points over 3 years. The CAA holder will not be entitled to
apply for, or be granted, a CAA of the same class during that time
(although as already mentioned, there is scope for
cancelled/suspended authorisations to be reinstated under
new section 30EF).
Existing section 31 of the Act sets out the
types of CASA actions that may be reviewed by the AAT. Item
16 amends existing section 31(1) to take account of the
new types of actions introduced by the Bill. Specifically, the
changes provide that a decision by CASA under new section
30EF (application for reinstatement of an authorisation)
is reviewable but suspensions of an authorisation under new
Division 3A (serious and imminent air safety risk) or
suspensions or cancellations under new Division 3D
are not.
Item 17 inserts new
sections 31A-31D. These provide for an automatic stay of
CASA s decision to suspend, vary or cancel an authorisation other
than a decision under new Division 3A.
Under new section 31A, any
decision that first requires a show cause notice to be given will
not come into effect until the end of the fifth business day after
CASA notifies the relevant CAA holder of its decision. However,
should the holder apply for an AAT review of the decision by the
fifth business day, the stay will continue in force until the AAT
makes its decision, or until 90 days after CASA originally notified
the holder of its decision, whichever occurs first. If the
holder subsequently withdraws their application, the stay lapses:
new section 31B.
Items 18-25 make various
consequential amendments to the Act to reflect the abolition of the
CASA board. For example, the responsibility for preparing the CASA
s corporate plan will now reside with the Director. The Minister
must approve the plan.
Item 26 deals with the
appointment of the CASA Director. Existing subsection 84(1) states
that the Minister must obtain a recommendation from the Board
before appointing a Director. Item 26 substitutes
a new subsection 84(1) which requires that the
Minister receive a report from the Departmental Secretary before
appointing the Director. The Explanatory memorandum comments
that:(27)
this provision is intended to provide procedural
fairness in line with the appointment of Portfolio Secretaries
under section 58 of the Public Service Act 1999.
Item 33 inserts a new
section 84B which sets out the Director s
functions. These include:
- deciding on CASA s objectives, strategies and policies;
- ensuring that CASA performs its functions in a proper,
efficient and effective manner ;
- ensuring CASA complies with section 12, 12B and 12D Ministerial
directions; and ensuring CASA acts in accordance with the Minister
s views under s.12A.
Item 33 also creates a
new subsection 84C that introduces a standard set
of disclosure and personal responsibilities through the
Commonwealth Authorities and Companies Act 1997.
Item 38 amends
section 89 to provide that the Minister must
receive a report from the Secretary prior to terminating the
Director.
Item 42 amends
section 91 to provide that the Director is
responsible for setting the terms and conditions of CASA staff.
Item 43 allows the Director
to make written delegations of any of CASA s powers to a CASA staff
member. A similar delegation may be made by the Director of certain
of his or her own powers namely those relating to corporate plans
(existing sections 44 and 45) and employment of CASA staff (section
91).
Any new section 12D
Ministerial direction, or any new section 12C
agreement between the Minister and the Director, must be tabled in
Parliament within 15 sitting days: items
45-46.
During the Ansett aircraft maintenance
crisis over 2000-01, the airline's Boeing 767 jets were first
grounded by CASA just before Christmas 2000, but CASA then let them
fly again, including one aircraft with an acknowledged fault risk.
CASA placed conditions on Ansett operations and maintenance
procedures, although it emerged that CASA had granted Ansett an
extension for inspections a year previously. Just prior to Easter
2001, CASA grounded ten of Ansett's Boeing 767 aircraft. The
continuing problems were said to reflect a lack of control and
alleged deficiencies in CASA's surveillance perhaps due to cost
cutting and staff cutbacks. CASA threatened Ansett with the
withdrawal of its Air Operators Certificate (AOC). Such action at
the very time of highest passenger volumes was to prove a major (or
possibly fatal) blow to the airline's continued operations, but
begs the question as to why proper surveillance and remedial
actions were apparently not taken earlier. While the world
and Australia may have lost one of its
oldest international airlines, Australia
s blemish free record of no fatal passenger jet crash here
remains intact. It is debateable whether this performance is
primarily attributable to Australia's
relatively benign flying environment and low air traffic levels or
due to stringent safety administration, or some combination of
both.
With the intended abolition of the CASA
board, a comparison might be made with the Australian Maritime
Safety Authority (AMSA). As an organisation that also reports to
the Minister, AMSA operates with a board in much the same manner as
CASA but to monitor maritime safety. Whether the peculiarities of
air safety management deserve special treatment warrants wider
scrutiny and perhaps comparison with the regulatory arrangements
applying in other countries, to see whether they utilise statutory
authorities and, whether they split regulation from enforcement
institutions, according to mode.
- New Air Authorities to replace CAA ,
Press release, The Hon Laurie Brereton MP, 28 March
1995.
- Australian, 10 July 1997.
- Review of the Regulation by the Civil
Aviation Safety Authority of Aquatic Air Pty Ltd trading as South
Pacific Seaplanes.
- Canberra Times, 19 February
1999, 9 October 1999; Bulletin, 13 June 2000.
- Sandilands, B. 2002 'Dead Safe',
Australian Financial Review, 12 January, p. 19.
- CASA Media Release, 12 October
2000.
- Reforms on course, say pilots The
Australian, 20 November 2002.
- Phelan, P. 2002 'Rescuing aviation in
Australia', Aircraft and Aerospace, January/February, pp.
34-6.
- The Civil Aviation Legislation Amendment Bill
2003 and the Aviation Transport Security Bill 2003.
- Paragraph 9(1)(c).
- The leading case regarding the issue of
statutory powers to make general directions is
Aboriginal Legal Services v Minister for Aboriginal and
Torres Strait Islander Affairs: [1996] 96 FCR
565. The Federal Court considered the meaning of subsection 12(1)
of the ATSIC Act, which required ATSIC to exercise its powers in
accordance with such 'general directions' as were given to it by
the Minister. From this case, it is clear that a general direction must not
only apply to a particular case or to a particular
decision, but must be applied generally, similar to a
binding guideline. However, a general direction may validly result
in some limitations on the exercise of a body s power, for example
by directing a body to take certain factors into account in making
a decision.
- Explanatory Memorandum, pp.
18-19.
- At p. 19.
- This is defined in Subsection 3(1) of the Act
as an authorisation under the regulations to undertake a particular
activity (whether the authorisation is called an authority,
licence, certificate, rating or endorsement or is known by some
other name) . This includes an AOC.
- This phrase is not defined.
- The notice of suspension given to the CAA
holder must include a summary of subdivisions C and D which
essentially deal with what happens after a suspension. However, no
information on the potential availability of a review of a CASA
decision by the AAT is required.
- Unlike the CASA power of suspension under
new subsection 30DC(1), the mere fact that the CAA
holder has previously engaged in conduct contrary to
new section 30BD is insufficient for the Court to
make under new section 30DE.
- In considering whether to make an order, the
Court must also have regard to section 3A and subsection 9A(I),
both of which emphasise the aviation safety focus of the Act.
- If the investigation only produces a
different concern, presumably CASA have to go back to new
section 30DC and start over.
- At pages 20-21.
- Essentially this proof requires the holder
have written acknowledgement of the report from the prescribed
person.
- This person will be prescribed by regulation:
new section 30DM.
- This includes serious damage to any
property.
- However there is no derivative use
immunity.
- They would also not be entitled to reapply
for authorisation, subject to new section
30EF.
- At p. 22.
- At p. 26.
Angus Martyn and Matthew James
19 May 2003
Bills Digest Service
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