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
Information and Research Services
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