Bills Digest no. 102 2008–09
Civil Aviation Amendment Bill 2009
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
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Date
introduced: 12 February
2009
House: House of Representatives
Portfolio: Infrastructure, Transport, Regional
Development and Local Government
Commencement:
Sections 1 to 3 and
various other parts of the Act commence either on Royal Assent, or
the day after Royal Assent. Schedule 1, which deals with the
proposed Civil Aviation Safety Authority Board, commences on 1 July
2009, as do the sections on Air Operator s Certificates for foreign
registered aircraft.
Links: The relevant
links to the Bill, Explanatory Memorandum and second reading
speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The Civil Aviation Amendment Bill
2009 (the Bill) mainly amends the Civil Aviation Act 1988
(the Act) to:
- re-introduce a Board into the governing structure of the Civil
Aviation Safety Authority (CASA), and
- make improvements to the aviation safety regulatory regime
under the Act.
In December 2008, the Commonwealth released a green paper on
National Aviation Policy,
Flight Path to the Future.[1] The green paper was the result of an
industry consultation process and will serve as the foundation of a
white paper due in late 2009. The matters covered in Flight
Path to the Future were wide-ranging in scope, and included
aviation safety issues. In it, the Commonwealth stated that it
would, amongst other safety-related matters:
- strengthen the Civil Aviation Safety Authority (CASA) by:
- retaining CASA as an independent statutory agency with
responsibility for aviation safety regulation;
- reinforcing CASA s governance arrangements, including:
- establishing a small expert CASA Board to guide the
organisation and to recommend enhancements to CASA s approach to
regulation and surveillance of airlines;
- strengthening CASA s regulatory powers to inspect and regulate
the operation of international carriers operating to Australia to
ensure safety standards are being met;
-
- updating the regulatory powers and enforcement provisions in
the Civil Aviation Act 1988 to ensure they support
effective management of future safety risks, including:
- giving CASA the necessary powers to deal decisively and
properly with operations that do not meet safety standards;
- strengthening CASA s capacity to obtain information on
suspected safety deficiencies; strongly supporting a culture of
self-reporting by operators, affirming the obligation on Air
Operator s Certificates (AOC) holders to notify CASA immediately of
any failures in safety compliance;
- ensuring CASA s penalty provisions provide a balanced and
effective range of responses to breaches, including:
-
- examining the operation of the demerits points system to ensure
its balanced application;
- clarifying the circumstances in which breaches and the actions
taken in response are to be made public, with an increased emphasis
on transparency; and
- considering the options of substantially increased financial
penalties where appropriate and revised disclosure
provisions.[2]
It is these commitments that the Government seeks to implement
through the Bill.
In
Flight Path to the Future, the Government also stated it
would:
- enhance the independence of the Australian Transport Safety
Bureau (ATSB) as a safety investigation agency by establishing it
as a statutory agency within the Infrastructure portfolio, working
under a Commission structure.[3]
This commitment is implemented through the associated Bill, the
Transport Safety Investigation Amendment Bill 2009.
Aspects of the Civil Aviation Amendment Bill 2009 dealing with
CASA governance have also been influenced by the inquiry of the
Senate Rural and Regional Affairs Committee on the
Administration of the Civil Aviation Safety Authority (CASA) and
related matters. [4] Recommendation 1 of the Committee s
report states:[5]
The committee recommends the Australian Government strengthen
CASA's governance framework and administrative capability by:
- introducing a small Board of up to five members to provide
enhanced oversight and strategic direction for CASA; and
- undertaking a review of CASA's funding arrangements to ensure
CASA is equipped to deal with new regulatory
challenges.
In the recent 20 26 January 2009 annual edition of the
authoritative European-based Flight International
magazine, article Accidents
and Incidents: Jan-Dec 08 , three Qantas incidents receive
mention among 24 total significant non-fatal incidents worldwide.
The events were the loss of electrical power in a Boeing 747
approaching Bangkok Airport in January, the onboard explosive
decompression of a Boeing 747 over the Philippines in July and the
unexpected dives experienced by those aboard an Airbus A330 flying
over northwest Australia in October 2008. These three incidents
involved over a thousand people and fortunately all survived.
Following media reports of
bogus aviation maintenance staff, on 5 February 2009, the CASA
Director of Aviation Safety signed an instrument of directions
relating to Qantas Airways Limited and the control of its licensed
maintenance personnel and their qualifications (CASA
82/09).[6] In the
Explanatory Statement to that instrument, CASA stated that it was
not satisfied that Qantas Airways Limited has adequate control of
its licensed maintenance personnel and their qualifications
.[7]
In 2008 following a series of incidents, CASA conducted two
additional intensive audits of Qantas. [8] The first was a full maintenance audit
of one aircraft of each major aircraft type in the Qantas fleet.
The second audit focused on the effectiveness of Qantas maintenance
systems in managing and implementing airworthiness directives.
On the other hand, national aviation safety statistics here are
not conclusive of any particular trend. The January 2009 Australian
Transport Safety Bureau (ATSB) report on Aviation
statistics: 1 January 1998 to 31 December 2008 shows trends in
air safety. In 2008, 38 people died in aviation incidents compared
to 23 in 2007, but the overall trend is arguable. The Explanatory
Notes say:
Table 1: The significant increase in incident
numbers from 2003 are the result of a healthier industry wide
reporting regime supported largely with the introduction of the TSI
(Transport Safety Investigation Act/Regulations 2003) in 2003 which
provided specific guidelines for mandatory reporting
requirements
Tables 10 to 12: The spike in the 2000 and 2005
fatality number and rate for low capacity air transport is
attributed to two accidents, which collectively resulted in 23
fatalities (ATSB investigation reports 200002157 and 200501977
refer).[9]
Table 1 indicates the Total number of accidents, serious
incidents and incidents by occurrence category and year, 1998 to 31
December 2008 , with serious incidents rising from 6 in 2003 to 64
in 2008, apparently for the reasons stated above. Incidents rose
from 4,856 to 7,833 over the same period, at least demonstrating
that a better reporting regime now applies. The ATSB
provides a brief overview description of these newer reporting
requirements.[10]
Table 10 of Air transport accident rates per 100,000 hours
flown, 1998 to 2007 shows that, for high capacity aircraft only a
very marginal increase in accidents from 2005 to 2008 and, the
spike in 2005 as noted for low capacity aircraft. Similarly, Table
11 of General aviation accident rates per 100,000 hours flown, 1998
to 2007 only shows very marginal trends. Ditto for Table 12: Total
air transport and general aviation accidents rates per 100,000
hours flown, 1998 to 2007 .
Air
passengers at Australia s capital city airports and nationwide
increased at 4 per cent per annum, with 23.5 million international
and 48.8 million domestic passenger movements in 2007-08.[11]
On 04 April 2007 the
ATSB released a 500-page final report into Australia s worst
civil aviation accident since 1968 at Lockhart River Queensland in
which 15 people died. The report spelt out contributing safety
factors involving the pilots, the operator and the regulator as
well as other safety factors, and made further recommendations to
improve future safety, including a large number relating to CASA
operations stating that:
The regulatory oversight was also not as good
as it could have been, especially when Transair moved from a
charter to a regular passenger transport operator and was growing
rapidly in Australia. In addition to the serious pilot and company
contributory factors, if CASA s guidance to inspectors on
management systems and its risk assessment processes had been more
thorough, the accident may not have occurred.[12]
In particular
recommendation R20070004 states that:
CASA did not have a systematic process for
determining the relative risk levels of airline operators. This
issue was discussed in the analysis section of the draft report but
was not listed as a safety issue. However, it has now been included
as a safety issue following assessment of comments on the draft
report. The Australian Transport Safety Bureau recommends that the
Civil Aviation Safety Authority address this safety issue.
And in response from CASA:
CASA has a project underway to review, and if
necessary, redesign elements of the oversight regime. The
implementation phase of the project commences in early 2008. This
project also includes a risk assessment module. It is intended that
the entire surveillance system be based upon an integrated risk
framework.
On 20 March 2008, The Minister for Infrastructure, Transport,
Regional Development and Local Government, the Hon Anthony Albanese
MP, released a report on the relationship between the Australian
Transport Safety Bureau (ATSB) and the Civil Aviation Safety
Authority (CASA) by Mr Russell Miller (the
Miller report)[13], saying that:
Mr Miller undertook the review at the request
of the former Transport Minister following comments from the
Queensland State Coroner about the observed tensions between the
two agencies during the inquest into the tragic accident at
Lockhart River in 2005.[14]
The Miller Report provided a number of recommendations largely
administrative in nature while other recommendations involved more
complex legislative and governance issues. One group of
recommendations related to the protection of information collected
during ATSB investigations, namely that in strictly limited
circumstances information should be provided to CASA to facilitate
immediate safety action. Other recommendations related to the
governance structure for ATSB and CASA:
20.3 While tensions between the safety
regulator and accident investigator in Australia should not be
unexpected, the Coroner correctly observed that the tensions he had
detected went well beyond the constructive tension one would
expect. Others interviewed by the Review recounted examples that
support the view that, although the behaviour evident in the
Lockhart River Inquest may have been an extreme example, this
tension has existed for quite some time and has affected the
relationship between the ATSB and CASA in a negative way .
20.10 On a more positive note, it is clear to
the Review that the ATSB and CASA have each recognised that they
need to each invest more in their relationship and have taken some
positive steps to do so. This is a very encouraging sign.
23. CASA governance issues
23.1 Some industry experts raised issues with
CASA s current governance structure, suggesting that
re-introduction of a board that could support the Director of
Aviation Safety would improve safety outcomes by providing high
level and widely based guidance for the organisation on key safety
issues arising from ATSB investigations. The Review noted these
suggestions but felt that they were beyond the Terms of
Reference
23.3 After the changes to CASA governance which
saw the Board replaced, responsibility for the relationship between
CASA and ATSB was delegated by the Director of Aviation Safety to
the Deputy Chief Executive Officer. It remains as such today. That
is not a matter of particular governance concern, but there is an
absence of clear protocols setting out the scope of the Deputy
Chief Executive Officer's responsibilities and objectives and clear
lines of authority to ensure that the Deputy Chief Executive
Officer has adequate resources available to properly manage CASA's
relationship with the ATSB.
Further in relation to passenger
transport:
41.1 The Civil Aviation Act and the
Transport Safety Investigation Act both make it clear that
aviation safety is a primary objective, but neither explicitly
gives primacy to promoting the safety of passenger transport
operations.
The Miller Report noted:
If the serious and imminent risk to air safety
that prompted CASA to act in the first place has not abated within
five business days, CASA is not entitled to extend this suspension.
The suspension will automatically lift unless CASA applies to the
Federal Court and is able to satisfy the Court that there are
reasonable grounds to believe that the suspended holder is likely
to engage in conduct that contributes to or results in a serious
and imminent risk to air safety If the Federal Court is satisfied
the suspension should continue, the Court may extend the suspension
for up to 40 days to allow CASA to complete an investigation into
the circumstances.
The Minister s Second Reading Speech for this Bill indicated
that CASA s ability to monitor overseas operators flying into
Australia was of concern, both in their home and overseas
jurisdictions.[15]
Accordingly, the Bill includes measures directed to that end.
The Bill also amends the routine automatic stay of reviewable
decisions provisions to involve the Administrative Appeals Tribunal
rather than allow operator to use legal means to avoid actions.
In October 2003, the Civil Aviation Act 1988 was
significantly amended to include additional compliance measures and
additional governance measures that abolished the then CASA Board
and designated the Director of Aviation Safety as the Chief
Executive Officer (CEO) of CASA. The Director is appointed by the
Minister and during the current period has been Mr Bruce Byron AM.
Background to the decision to abolish the then CASA Board in 2003
is contained in the Bills
Digest to the Civil Aviation Amendment Bill 2003.[16] The relevant section
of this is reproduced for convenience in Appendix 1 of this
Digest.
The CASA
Corporate Plan 2008 09 to 2010 11 notes that:
CASA operates under the financial and
governance arrangements of the Commonwealth Authorities and
Companies Act 1997 (CAC Act). In the 2007 08 to 2009 10
Corporate Plan it was reported that CASA had made the necessary
preparations, in conformity with the then government s
requirements, for transition to the Public Service Act
1999 and the Financial Management and Accountability Act
1997, with intended effect from 1 July 2008. In the event, the
then government deferred the planned transition.
The government will implement its policy to
establish a board for governing CASA. The Senate inquiry into the
administration of CASA, which reported in September 2008, also
recommended appointment of a board.[17]
The Flight Path to the Future green paper proposed a
five member Board comprising a chair, deputy chair, the CASA CEO
and two other members. It proposed that, in consultation with the
Minister, the Board would appoint the CEO. However, on 16 December
2008, the
Minister announced a new CEO for CASA, Mr John McCormick to
replace Mr Bruce Byron AM from 28 February 2009.[18] He will prepare for
establishment of the Board to be in place by 1 July 2009.
Flight Path to the Future also noted that the
Government would give due consideration to CASA s long term funding
arrangements:
The Government has also considered whether it
would be appropriate for CASA to transition to the Financial
Management and Accountability Act 1997 (FMA Act) according to
the financial management principles established in the Review
of the Corporate Governance of Statutory Authorities and Office
Holders (Uhrig Review) presented in 2003.
The Government does not propose to do this at
this time. CASA will be retained as a statutory authority under the
CAC Act and the Government will review this arrangement in two
years. The new CASA Board will be responsible for the efficient,
effective and ethical use of Commonwealth resources.[19]
Flight Path to the Future examined CASA s regulatory
powers and industry interactions, considering options for voluntary
and mandatory aviation safety reporting requirements, as well as
increased penalties for regulatory breaches. The Aviation
Regulatory Review Taskforce recommended that the current regulatory
reform process be completed by 2011 12.
Flight Path to the Future also noted that CASA s
internal reforms would have to overcome some inconsistent practices
in regulatory performance. The CASA Corporate Plan
2008 09 to 2010 11 proposes a comprehensive series of
initiatives to enhance aviation safety regulation.
At its meeting of 12 February, the Senate Selection of Bills
Committee resolved not to refer the Bill for inquiry.
There
appears to have been no comment on the Bill by aviation or related
groups.
There appears to have been no comment on the Bill by any
non-government parties or individual Members or Senators.
The Explanatory Memorandum to the Bill
states:
The financial impact of the Bill on the
Commonwealth is expected to be minimal. A modest increase in
resourcing for CASA to support the new Board is currently being
considered as part of the 2009-10 Budget process.[20]
Schedule 1 Governance of CASA
Item 18 repeals the current Part VII in the Act
and inserts:
- a new Part VII (which deals with the new CASA
Board), and
- a new Part VIIA (which deals with CASA s
Director of Aviation Safety (the Director) and CASA s staff).
Under new section 52, the Board will consist of
the Director and up to four members, one of which will be the
Chair. Members (this does not include the Director) are appointed
by the Minister on part-time basis, on terms up to 3 years, and are
eligible for reappointment. The Minister must ensure an appropriate
balance of professional expertise in appointing members, but need
not ensure that particular sections of the civil aviation industry
are represented : new section 54. The remaining
provisions as to board membership, such as outside employment,
remuneration and termination are standard. However, new
paragraph 60(2)(c) enables the Minister to terminate the
appointment of members if the Minister thinks performance of the
[relevant] Board member has been unsatisfactory for a significant
period of time . The Explanatory Memorandum comments that:
Unsatisfactory in this provision is taken to
mean with respect to contributing to the functions of the CASA
Board, in the wider context of civil aviation.[21]
Similarly, new subsection 60(3) enables the
Minister to terminate the appointment of all Board members or
individual Board members if the Minister is of the opinion that the
performance of Board members or the performance of CASA
has been unsatisfactory for a significant period of time . The
Explanatory Memorandum comments that:
For example, the Minister would be able to
consider CASA s performance was unsatisfactory because of matters
such as failing to perform its functions, failing to comply with
Directions or meeting relevant administrative requirements. This
section is not intended to be used where it is claimed that CASA
performance is unsatisfactory merely because CASA is implementing a
Government policy with which a person does not agree.[22]
The functions of the Board are set out in new section
53. These are to:
- decide the objectives, strategies and policies to be followed
by CASA
- ensure that CASA performs its functions in a proper, efficient
and effective manner
- ensure that CASA complies with directions given by the Minister
in section 12B.
Decisions of the Board will normally be taken at meetings,
though the Bill includes standard provision for decisions to be
made out of session. Decisions at Board meetings are by majority
vote of those attending and voting, although there is provision for
a casting vote by the member presiding (normally the Board Chair)
if necessary.
Item 21 deletes the existing power in section
94A of the Minister to delegate his or her powers to the Secretary
of the administering Department, and inserts new section
95 which allows the Board to delegate in writing any or
all of its powers to any particular member or members, the
Director, or any member of CASA. In exercising such powers, the
delegate must comply with the directions of the Board.
Under new Part VIIA, the Director is appointed
by the Board on a full-time basis for a term of up to five years,
and is eligible for reappointment. The Board must first consult
with the Minister. An existing Board member cannot be appointed as
Director. The remaining provisions as to the Director s employment,
such as outside employment, remuneration and termination are
standard. The Board may, after consulting with the Minister,
terminate the Director s appointment if it is satisfied that the
Director s performance has been unsatisfactory : new
paragraph 81(e).
The duties of the Director are to manage CASA subject to the
directions of, and in accordance with policies determined by, the
Board: new section 73.
Under item 25, in the event that a person is
holding the office of Director under existing section 84 of the Act
immediately before the Act comes into force (scheduled to be 1 July
2009), that person is deemed to have been appointed Director under
the new scheme.
Item 7 inserts new subsection
23(2AA), containing a new offence of the negligent
carriage or consignment of dangerous goods on board an aircraft.
Such goods can only be carried or consigned where permitted by
relevant regulations (including any conditions that attach) or with
the written permission of CASA. The maximum penalty for the offence
is 2 years imprisonment. This supplements existing carriage or
consignment of dangerous goods offences in section 23, which carry
maximum penalties of to seven years imprisonment. The Explanatory
Memorandum appears to suggest that carriage or consignment of
dangerous goods most often occurs through negligence rather through
intention or recklessness,[23] hence the need for the new provision with a fault
element (negligence) to reflect this.
Part IIIA of the Act deals with CASA s investigatory
powers. Item 15 repeals existing section 32AC,
which deals with entry to premises with consent for inspection
purposes, and replaces it with a new version that takes account of
Australia s obligations in respect of monitoring compliance with
the New Zealand civil aviation legislation under an ANZA mutual
recognition agreement. Fundamentally, however, there are no
significant changes to the relevant inspection powers.
Items 16 and 17 makes similar procedural changes,
but in the context where inspection is under warrant.
Existing section 32AH deals with discovery of evidence .
Item 21 repeals this section and substitutes
new sections 32AH-AHN. These deal with powers of
an inspector when searching premises either with consent or under
warrant. These standard provisions include the use of necessary and
reasonable force against persons or things when operating under a
warrant, compelling assistance with respect to computer records,
and seizure of evidential material. Note that the issue of entry,
search and seizure provisions in Commonwealth legislation has been
significant issue in recent years, particularly the lack of
justification in some explanatory material to Bills in cases where
the Bills have contained extensive entry, search and seizure
powers. In January 2008, the Government released its
response to the extensive 2006
report of the Senate Scrutiny of Bills Committee of 2006 on
such matters. The Explanatory Memorandum to the Bill comments:
The Bill contains a number of changes to CASA s
investigative powers and search and seizure procedures to bring
them into line with current Commonwealth criminal justice
procedures and practices. It will also extend powers to allow CASA
to use search and seizure powers under Chapter 7 of the Criminal
Code. Amongst other things, these changes require that CASA
investigators are appropriately qualified and comply fully with
contemporary requirements governing the conduct of searches under,
and in the absence of, a search warrant, the management of evidence
and the use of computers and related equipment in the analysis of
evidence.[24]
Item 26 inserts offences relating to warrants,
for example knowingly making a materially false or misleading
statement in the course of applying for a warrant. The offences
carry a maximum penalty of 2 years.
Items 1-6 relate to Air Operator s Certificates
(AOCs) for foreign registered aircraft where these aircraft
conduct, or propose to conduct, flights to and from, or within,
Australian territory. AOCs are granted by CASA. Theses items amend
the Act to allow CASA to require holders of, and applicants for,
such AOCs to provide evidence in respect of:
- both any safety deficiencies in relation to their overseas
operations and their ability and willingness to addresses
these,
- management and control of their operations, and
- the foreign regulatory authorities or authorities responsible
for safety and related matters
- CASA then may use the above evidence in deciding on AOC
applications and the like by foreign operators.
Items 7-15 amend the current demerit point
scheme in the Act. The scheme requires CASA to suspend all civil
aviation authorisations (CAAs) held by a person within a particular
CAA class where they incur 12 or more demerit points[25] in that class of CAA
over a three year period. Demerit points are incurred where holder
commits one or more of a very wide range of strict liability
offences set out in the Civil Aviation Regulations 1988 and the
Civil Aviation Safety Regulations 1988. 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 3
points through a prescribed offence, they would be suspended for 90
days. However, CASA may also reinstate a CAA under certain
grounds.
Regulations under the Act set out the various classes for the
purposes of the scheme and which CAAs belong in what class (there
are 15 classes in all). The Explanatory Memorandum accompanying the
(then) Civil Aviation Amendment Bill 2003 explained the concept of
these classes and the application to demerits scheme:
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.
As the scheme currently stands, it appears demerit points can
only be incurred if a person holds a CAA at the time of the
offence. However, item 8, along with subsidiary
changes, removes this loophole. The changes mean that, if a person
commits an offence to which the demerit points would otherwise be
attached, and then subsequently gains or regains[26] a CAA, the points will count
against the relevant CAA for three years after the offence
occurred. Thus if someone commits a 6 demerit point offence on 1
January 2010, and then subsequently acquires a relevant CAA on 1
July 2010, those 6 points will count against the CAA until 31
December 2012. If the person then incurred another 6 demerit points
before 31 December 2012, the CAA would be suspended.
Items 16-19 amend the automatic stay provisions
in existing section 31A of the Act.
Under various parts of the Act and regulations, if CASA decides
to suspend, vary or cancel a certificate, permission, permit or
licence (for example, an AOC), it must first give a show cause
notice to the holder of the relevant certificate etc to allow the
holder to make a case why it should not be suspended etc. It is
important to appreciate that section 31A of the Civil Aviation
Act 1988 (the Act), which deals with the automatic stay of
CASA s decision to suspend, vary or cancel various types of
certificates, permissions, permits or licences, does not
apply to a suspension of civil aviation authorisations (CAAs) made
by CASA under the serious and imminent risks to air safety
provisions in Division 3A (sections 30DA-DI) of the Act or CAA
suspensions or cancellations under the Division 3D (section
30DS-EJ) demerits.
Section 31A provides that any such suspension etc that requires
a show cause notice process does not come into effect until
the end of the fifth business day after CASA gives the notice to
the relevant holder. However, should the holder apply to the
Administrative Appeals Tribunal (AAT) for an review of CASA s
decision by the fifth day, the stay will continue in force until
the AAT s ruling on the decision is made and comes into force, 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.
Under the proposed amendments the five-day stay remains, the
holder must lodge an application to extend the stay (rather
than as currently just lodge an application for general merits
review of CASA s decision) within that five day period. The
Explanatory Memorandum to the Bill comments that:
Stay applications are heard in the AAT on an
expedited basis, and these amendments will ensure
that authorisation holders, whose privileges CASA has decided to
vary, suspend or cancel, may not continue to operate for an
extended period of time (pending a merits review of CASA s
decision), without the AAT deciding, as quickly as possible, that
it is appropriate that they might do so. [emphasis added].[27]
Should an application to be made to the AAT to extend the stay
within the five day period, the stay will remain in place until the
AAT makes a decision whether to extend it or not. Obviously the
effectiveness of the proposed amendments depends on the AAT being
able to rapidly hear and decide on applications for extensions of
stays, and certainly quicker than 90-day period referred to
above.
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.
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. 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 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.
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. 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.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2764.
Matthew James
24 February 2009
Bills Digest Service
Parliamentary Library
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