Recommended amendments to Civil Aviation Amendment Bill 2003

Firstly, AIR SAFETY AUSTRALIA commends the Minister on the new scheme of Enforceable Voluntary Undertakings embodied in Division 3B.  The changes made to this scheme since it was last proposed mean that we have no objection to it.

Secondly, AIR SAFETY AUSTRALIA commends the Minister on the concept of Demerit Points as set out in Division 3D.  The effectiveness of such schemes in securing compliance with the rules is well-known to all who use Australia's roads.  In the present case it is only the principle which is on display, because the regulations defining the number of points for various offences have not yet been published.  But it is a great step forward.  We are confident that the Minister will act on our recommendation that if there is to be a discretion to restore a license lost as a result of the non-discretionary scheme, that discretion should be exercisable openly by a Court, not secretly by CASA.  And of course the demerit points scheme is meaningless whilst Regulation 269(1)(a) remains on foot.

Item 15

Amend new Section 30DB by replacing the words

The holder of a civil aviation authorisation must not engage in conduct that constitutes, contributes to or results in a serious and imminent risk to air safety.

with

The holder of a civil aviation authorisation must not engage in conduct authorised by that civil aviation authorisation that constitutes, contributes to or results in a serious and imminent risk to the safety of another person (other than a person who has explicitly consented to that risk).

Delete new Section 30DH

Amend new Section 30DI by replacing the words

(2) CASA may vary, suspend or cancel the authorisation, by written notice given to the holder of the authorisation within 5 business days after the end of the period specified in the show cause notice.

With

(2) CASA may apply to the Federal Court for an order varying, suspending or cancelling the authorisation.

Delete new Division 3C

Add a new item 49

Civil Aviation Regulations 1988, Regulation 265

Repeal the regulation.

Add a new Item 50

Civil Aviation Regulations 1988, Regulation 268

Repeal the Regulation

Add a new Item 51

Civil Aviation Regulations 1988, Subregulation 269(1)(a)

Repeal the Subregulation

Explanations

Item 15

Section 30DB.  The phrase "serious risk to air safety" might include conduct which endangers no-one, or no-one other than the person engaging in it.  One example is where a pilot may elect to take off at night to fly an injured person to hospital.  Another is where a pilot may use a helicopter to muster livestock in a manner which is entirely legal but which CASA considers endangers Air Safety.  If prevented from doing so she may be forced to do it in a manner more dangerous to herself, namely on horseback.  Under Section 30DI(2) CASA (not a Court) may permanently cancel the pilot's license in such circumstances.

Section 30DH.   The new Section 30DH sets out procedural steps to be taken before CASA takes action under Section 30DI.  Proposed amendments to Section 30DI mean Section 30DH is unnecessary.

Section 30DI.  The new Section 30DI permits CASA to permanently cancel (etc) a pilot's license without recourse to the Court.  The proposed amendments empower CASA to apply to the Federal Court for an order having the same effect.

Division 3C.  Division 3C needs a complete re-work.  In his Second Reading speech, the Minister said that This scheme … will encourage a culture of reporting breaches without fear of reprisal"

and it will not be available for deliberate breaches of regulations, breaches of the act, breaches that seriously endanger the safety of fare-paying passengers, other aircraft or people on the ground". 

AIR SAFETY AUSTRALIA has long called for just such a scheme but Division 3C does not do what the Minister says it will.

The USA has a voluntary reporting scheme - ASRS - which has stood the test of time.  It has been in force for more than 25 years (the equivalent of 500 years in Australia) and is highly regarded by both the regulator and those regulated.  It is a great shame that we have not copied that scheme precisely.  Division 3C proposes something utterly different and very punitive. 

Aviation has become the safest form of transport.  One of the major reasons for this is that pilots report incidents which may have been accidents in other circumstances, thus allowing corrective action to be taken before an accident occurs.  In this respect the rest of the world owes the USA a great debt because the USA's incident-reporting system is so successful.

If you want a person to admit to a mistake she has made, you cannot do it by threat of punishment if the mistake is known only to the person who made it.  But you can do it by offering her protection from punishment.

This scheme lays a person who reports a breach open to criminal action in respect of any breach she reports.  The report itself cannot be used as evidence directly, but it may lead to other evidence which can be used - for example, evidence which can be obtained from another pilot aboard the aircraft once the fact that a breach occurred is known.

What's more, the Minister says that the scheme will not be available for "breaches that seriously endanger the safety of fare-paying passengers, other aircraft or people on the ground".  That is not reflected in Division 3C itself, which draws no distinction between breaches which endanger other people and those which do not.  The truth is that the scheme is not available for breaches that seriously endanger the safety of no-one but the pilot herself.  A mistake that is made by a pilot alone in an aircraft is very difficult to detect and prosecute - yet it may well be the kind of mistake that could in different circumstances lead to an accident and loss of life.  It is the very kind of mistake which is only likely to come to light if reported voluntarily - yet this scheme potentially punishes such a report.  The Minister obviously did not intend to mislead the Parliament in his Second Reading speech, so it is difficult to escape the conclusion that he himself has been misled about what his legislation really does.  It is as though the Minister likes the idea of the ASRS scheme and said to CASA "please go and design me a scheme like ASRS" - which CASA then did, being careful to ensure that the scheme offered no real protection.

AIR SAFETY AUSTRALIA recommends that Division 3C be removed from the present Bill and that it be re-designed by an open consultative process in which CASA is a participant but does not provide the Chair or the Secretariat.

New Item 49

The present Regulation 265 empowers CASA to immediately suspend a license if it requires a person to undergo an examination.  This power can be used to deprive a person of his income or to strand an aircraft and its occupants far away from home.  If the circumstances giving rise to the requirement to undergo examination also represent a serious and imminent risk, they should be dealt with under the new Division 3A.

Note that the powers to require a person to undergo an examination are very wide.  Regulation 33 says "CASA may at any time require the holder … to undergo an examination designed to test his or her competency ..".  CASA does not have to believe that any risk exists or have any suspicion that the person may be incompetent.  What's more, the examination does not have to follow any particular form.  It is just like the old "dictation test" of the 1950s, under which an Immigration Officer could administer a dictation test in any European language and refuse a person entry if she failed it.

New Item 50

The EM to the Bill says "Regulation 268 will be repealed by regulation amendment".  It ought to be repealed by the Bill itself, because the new division 3A of the Act replaces CAR 268.  If it is not done with this Bill there is a risk that both provisions will remain on foot.  This might happen, for example, if the regulation amendment repealing Regulation 268 also contained other changes which were unacceptable to either House.  Or it might happen if a new Parliament were elected before the Regulation Amendment had passed. 

New item 51

Subregulation 269(1)(a) gives CASA power (inter alia) to cancel a pilot's license for any breach of the Act or the Regulations no matter how minor.  The pilot does not have to be convicted of that breach, CASA merely has to be "satisfied" of it.

Continuation of this power would render the demerit points scheme meaningless, because CASA could at any time cancel a person's license permanently for any breach, even one which attracted only a single demerit point.

CAR 269(1)(a) has nothing to do with serious and imminent risks.  Those are currently dealt with by CAR 268 and if this Bill passes will be dealt with by Division 3A of the Act.  CAR 269(1)(a) is used only after an investigation and a "show cause" process which typically takes 6 months from the time that CASA becomes aware of an alleged offence.  CAR 269(1)(a) is for dealing with terminal cases - pilots who, whilst not presenting a serious and imminent risk, nevertheless ought to be grounded temporarily or permanently because of the gravity of a particular offence.

There is no need for CAR 269(1)(a) if this Bill passes.  The Courts already have the power under Section 30A of the Act to impose an exclusion period for any offence against the Act or the Regulations.  If a person commits an act which would normally attract only 1 demerit point, but which is especially horrendous in its particular circumstances, it is always open to the prosecutor to persuade the Court, upon sentence, to exercise its power under Section 30A to permanently or temporarily exclude the pilot from flying.

There has been a long succession of complaints from the aviation community about CASA and its predecessors.  There have been many investigations, Parliamentary and otherwise.  The aviation community's complaints mostly focus on CASA's use of its powers of patronage and coercion.  CASA's use of CAR 269 heads the list.  It is at the very root of today's complete lack of trust by the pilot community in CASA.

Motorists generally trust the Highway Patrol.  Farmers generally trust the Noxious Weeds inspectors.  Businessmen generally trust the ACCC.  But pilots do not generally trust CASA.  This is not because CASA's staff or management are especially bad.  It is because CASA has been invested with excessive discretionary powers, above all CAR 269(1)(a).  The fact that the Highway Patrol, the Noxious Weeds Inspectors and the ACCC enforce their regulatory schemes transparently through the courts means that trust between regulated and regulator is not eroded when enforcement is needed.