Feb 12, 2009

Civil Aviation Amendment Bill 2009

Civil Aviation Amendment Bill 2009


On 2 December 2008, the Government released its National Aviation Policy Green Paper which described the initiatives and policy settings the Government is proposing to enable a vibrant and prosperous aviation industry; one that delivers the highest standards of safety and security, competitive aviation markets and services, investment in infrastructure and environmental responsibility.

The National Aviation Policy Green Paper sets out important initiatives in the development of the Government’s aviation reform agenda, which will lead to the nation’s first ever National Aviation Policy White Paper in the second half of 2009.

Today I introduce to Parliament two Bills that implement this Government’s commitment to taking decisive action to strengthen the nation’s safety agencies and their oversight of the aviation industry. Together the Civil Aviation Amendment Bill and the Transport Safety Investigation Amendment Bill will allow the Government to fulfil the undertakings made in the Green Paper to have important enhancements to safety regulation governance in place from 1 July 2009.

The Civil Aviation Amendment Bill will create a small expert Board for the Civil Aviation Safety Authority (CASA) — Australia’s aviation safety regulator — and strengthen CASA’s capacity to take necessary safety action.

The Transport Safety Investigation Amendment Bill, which I will introduce next, will enhance the independence of the Australian Transport Safety Bureau (ATSB) by establishing it as a separate statutory agency with a Commission structure.

Safety is the number one priority for Government aviation agencies, and safety regulation must be robust, efficient and effective. Safety is a core part of the aviation industry and must underpin every aspect of its operation.

Australia enjoys an enviable safety record. Our safety systems are second to none and our government agencies responsible for aviation safety are internationally respected. However, the Government cannot and will not rest on this record.

Our safety agencies must be prepared for their leading role in Australia’s twenty-first century aviation sector. The industry itself is dynamic with the significant industry growth, increasing passenger numbers, and the introduction of new aircraft, technologies and business practices. Of course, Government and industry must share the responsibility for addressing these safety challenges.

The Civil Aviation Amendment Bill improves the capacity and effectiveness of CASA to meet the challenges of an increasingly complex and diverse aviation industry. CASA must have the right structure, resources and legal framework to regulate the civil aviation industry to protect the travelling public, industry participants and the wider community.

The CASA Board created by this legislation will be a small expert Board of five members appointed by the Minister. The Board will strengthen CASA’s governance arrangements, and provide strong support to the Director of Aviation Safety and the Minister. It will also play an important role monitoring CASA’s effectiveness and accountability across its range of functions. The Board will facilitate stronger links between CASA and other government agencies, and allow for more meaningful and constructive input from industry and other relevant stakeholders into strategy.

Circumstances have clearly changed since the decision in 2003 to abolish the CASA Board. Since then, a substantial amount of organisational reform has been undertaken within CASA, something acknowledged by the Senate Standing Committee on Rural and Regional Affairs and Transport in its recent report “Administration of the Civil Aviation Safety Authority (CASA) and related matters”. The way CASA interacts with the aviation industry and the wider Australian aviation community has also evolved. Importantly, this Bill implements one of the Senate Committee Report’s key recommendations — to introduce a small board of up to five members to provide enhanced oversight and strategic direction for CASA.

The Board will assist CASA to manage the implications of industry growth and trends such as increasing pressures on secondary airports, low cost carriers, and changing aircraft and navigation technology. There is widespread support within the aviation industry for a new CASA Board, and the Board will ensure effective interaction between the regulator and industry.

The new Board will facilitate better relations across agencies with safety responsibilities and also allow for more meaningful industry input into strategy. It is important to be clear that this Board will not be ‘representational’. CASA’s role inherently involves striking a balance between the competing needs of different industry sectors and, when appointing Board members, the Minister must ensure the Board has an appropriate balance of professional expertise.

The Board will operate at a strategic level – to give high-level direction to CASA’s regulatory and safety oversight role, but not blur the clear lines of authority and accountability for day to day decisions. It will be broadly responsible for CASA’s strategic direction, risk management and corporate planning.

The primary duties of the Board will include deciding on the objectives, strategies and policies to be followed by CASA; ensuring CASA performs its functions in a proper, efficient and effective manner; and ensuring that CASA complies with certain directions given by the Minister.

The Director of Aviation Safety will be an ex officio Board member and continue to manage CASA under the Board’s strategic guidance. The Director will retain executive responsibility for day-to-day decision-making, staffing and financial management. The Director of Aviation Safety will be directly responsible to the Board.

CASA needs to be able to use its oversight and enforcement tools in a progressive and effective manner, consistent with contemporary practices and procedures. This Bill introduces a range of measures designed to improve CASA’s ability to take necessary safety actions, particularly in relation to foreign carriers operating into Australia.

There have been significant concerns raised by many inside and outside the industry about CASA’s ability to satisfy itself that all operators flying into Australia are receiving adequate safety oversight outside Australia. In the Green Paper the Government committed to exploring whether CASA’s capacity to take a broader range of issues into account when considering whether to allow a foreign operator to fly into Australia needs to be expanded.

This Bill will now amend the Act to achieve higher levels of assurance of safety by improving oversight of foreign carriers flying to Australia. It enables CASA to take greater account of both the conduct of air operators in their home and other jurisdictions, as well as the level of safety oversight provided by civil aviation authorities in other countries. The amendments are consistent with actions taken by the European Union and in North America to address these issues.

The Bill also makes an important amendment to ensure that aviation safety is the main focus of key enforcement provisions in the Act. It amends the automatic stay of reviewable decisions provisions to ensure that extensions of automatic stays do not continue for a period up to, and rarely less than 90 days, but are instead subject to a decision by the Administrative Appeals Tribunal (AAT). This will ensure that where CASA takes enforcement action based on safety grounds that give rise to serious safety concerns the automatic stay continues only up to the time the Tribunal makes a decision on an application for a stay. Holders of a civil aviation authorisation will still have the benefit of the 5 day automatic stay, and a further automatic stay after that, but only until the Tribunal can determine any stay application.

These amendments are necessary because the routine application of the ‘automatic stay’ provisions of safety related decisions have effectively nullified CASA’s ability to suspend or cancel the authorisations of operators found to have fallen well below an acceptable level of safety. A number of recent incidents have highlighted how access to legal remedies such as ‘automatic stays’ can arguably have the consequence of allowing operators to remain in the air despite compelling evidence of serious safety deficiencies.

Importantly, the Bill will also close a gap in the current legislation by introducing an additional offence of negligently carrying or consigning dangerous goods on an aircraft. The carriage or consignment of dangerous goods is a major safety issue. The inclusion of an offence for the negligent carriage or consignment of these goods will ensure that lack of care in relation to the duty of carriers and consignors is addressed, providing an appropriate and proportionate response to this kind of conduct. This amendment will be welcomed by the aviation industry that has expressed strong support for this approach.

The Bill also makes a number of minor or clarifying amendments to ensure CASA’s ability to take necessary safety actions is clear. These include amendments to the demerit point scheme to prevent authorisation holders inappropriately avoiding demerit points; extending the period for which an Enforceable Voluntary Undertaking (EVU) may apply from 6 months to 12 months; and refining CASA’s investigation powers and search warrant procedures to bring them into line with current Commonwealth criminal justice procedures and practices.

The Civil Aviation Amendment Bill 2009 demonstrates this Government’s ongoing commitment to aviation safety —we are taking decisive action now to strengthen the nation’s safety agencies and their oversight of the aviation industry. Following further consultation we will release Australia’s first ever National Aviation Policy White Paper in the second half of 2009.