Note: This is an updated version of an article that first appeared in AviationAdvertiser in October 2010.
Reform of aviation regulation in Australia is further from becoming a reality than it has ever been since the need was first acknowledged and addressed 24 years ago. That is the collective view of senior industry figures who have been involved in the process almost since its inception.
The prime concepts driving the project that became known as the Regulatory Review Program (RRP) have always been:
- Outcome-based rather than prescriptive regulation, which is the basis of aviation regulation in all other aviation-significant democracies;
- Alignment with overseas regulatory structures so that Australia could achieve true bilateral agreements with the leading overseas aviation authorities;
- ‘Plain English’ rules that are easy to understand, administer and enforce;
- Objective evaluations of cost benefit and safety relevance to eliminate wasteful and un-necessary administration;
- Compliance in rulemaking with Australian law, government guidelines; international (ICAO) standards; and
- Two-tier regulation to replace the (then) existing multi-layer regulation comprising the Civil Aviation Act, Regulations and Orders, policy documents, individual rulings and permissions, exemptions and other instruments.
Although endlessly repeated in political and administrative rhetoric right through the regulatory reform process, these goals have been almost completely ignored by well-placed CASA dissidents.
And worse, political pressure is now on Director John McCormick to rush the remaining legislation through Parliament regardless of its blatant non-compliance with founding principles.
This situation is no accident; it can only spring from deliberate corporate defiance of existing law, international standards, government directives and guidelines, and executive directions.
In September 2007 CASA admitted to a Senate committee that up to that time $144 million had already been spent on its RRP. It added that its estimate for the current year (2006-07) was $24 million, and the projected costs for 2007-08 were another $23 million. That pushed the expected total bill to a staggering $191 million in 18 years. Assuming the subsequent five years were held down to the 2008 figure, we have now run up a total bill of at least $306 million.
Former Program Advisory Panel (PAP) industry delegates now believe the situation will continue generating material that will eventually have to reversed until CASA’s “resistance movement” is identified and dealt with, and until the RRP process is brought into uncompromising alignment with its stated goals and into compliance with published government policy.
This increasingly costly fiasco appears to be almost solely the work of former and present CASA lawyers, supported by the resistance movement of officials in airworthiness, flight operations and administration.
The obstruction was briefly circumvented in early 1997 when CASA’s Office of Legal Counsel (OLC) was bypassed. Since that time the CASA’s Standards Development Branch officials have reassumed the role, although neither the AGs nor CASA will explain when, why and how that reversal was achieved, and the process is back where it started.
The solution to the regulatory rewrite problem is simply to repeat the exclusion of CASA lawyers from the regulatory rewrite, purge the organisation of its “resistance movement” at any cost, and re-establish respect for the rule of law within CASA.
This analysis concludes that an equally valuable side benefit will be the cessation of hostilities between CASA and the industry it is supposed to be regulating.
* * * * * * *
In October 1996 CASA and its industry-based PAP were sparring over the format and content of Civil Aviation Safety Regulation (CASR) Parts 21-35.
Peter Ilyk, then head of CASA’s ever-growing Office of Legal Counsel, was explaining that the draft CASR Part 21 which the Panel had favoured had been written in “American language” which wasn’t suitable for “Australian conditions.” He told the Panel it needed to be written in language that judges and the courts could understand.
That was too much for AIPA (Australian & International Pilot’s Association) President Bill Pike to swallow, according to witnesses who recall the scene clearly: “He got no further than that when Bill at the other end of the room blew his top, leapt to his feet, livid, pointed at Ilyk, and yelled at him: “I don’t want judges and bloody lawyers to understand it, I want the bloke in the cockpit to understand it!”
PAP member and highly-regarded aeronautical engineer Dafydd Llewellyn, recalls:
“That kind of intelligibility was achieved in Parts 21 – 35, and we do as a result now have something approaching a true bilateral airworthiness agreement with the FAA in the areas covered by those Parts; and we also (as a separate issue) now have a growing aeronautical component manufacture industry that is making replacement parts that are no longer available for many aircraft types. This industry did not have a proper place prior to the introduction, in 1998, of Part 21, because the appropriate legislation for it did not exist before then. Bilateralism will make this an export industry. Further, the rules have been defined for MITCOM, (manufacture [of components] in the course of maintenance) and without both of these, aircraft maintenance in Australia would have ground to a halt. This piece of progress has NOT had any adverse effect on safety.”
A guide for the future
The smooth progress of Parts 21-35 has been explained to us by another PAP participant:
“In early 1997 a meeting took place between Transport & Regional Services Minister John Sharp, the then Attorney-General (Hon Daryl Williams), officials of the Attorney-General’s Department, DOTARS officials and CASA Director Leroy Keith. The issue was specifically whether the US FAA and UK CAA texts could be used. (In other words, could we harmonise?) CASA’s Office of Legal Counsel (OLC) had obtained advice from AG’s that this could not be done. But this was in the days when the AG’s Department was competing with the private sector to give advice to government and therefore sought to please the ‘client.’ When it was discovered that the ‘client’ as represented by Leroy Keith and the Minister actually wanted to harmonise, all difficulties vanished and Parts 21 -35 largely reflect this success.”
This enabled lay draft regulations to bypass CASA’s OLC and go straight to the Attorney-General’s Office of Legal Drafting (OLD), now renamed Office of Legal Drafting & Publication (OLDP), and returned as intelligible legislation. At the same time an agreement was achieved between the Attorney-General’s Department and John Sharp as Minister for Transport that “plain English,” along the US style, could be used as was already the case with other Commonwealth legislation.
But if the current state of the maintenance regulations is an indication, that arrangement has since been sabotaged. We asked CASA if the arrangement had ceased, and if so when that was announced and why, but never received a reply. The AG’s Department was similarly unwilling to enlighten us.
We also asked CASA last October 1 if former CASA CEO Bruce Byron’s directives 16/17 were still in force, and if so why could they not be found on the CASA web site. CASA responded that: “The directives have been superseded by policies and this is why they no longer appear on CASA’s web site.”
The next question: “Perhaps you could direct me to the corresponding published policies?” also remains unanswered.
Several years after these events, promising “regulation with a capital R,” CASA Director John McCormick told the RAAA conference in October 2009:
“I’m not saying we won’t consult. I’ll say it again. We must consult with industry; the Civil Aviation Act requires that we do. CASA will continue to do that. But I’m not going to consult to consensus, because it’s impossible. There are various sections of the industry in Australia that hold such entrenched views that they are prepared to fight to the last man standing over something which I think in some cases is minuscule.”
The author has been briefed by several senior industry identities with deep backgrounds in the now 21-year-old RRP, who insist their concerns are far from minuscule. They believe that what is now happening with the development of the maintenance regulations will simply never work; that the whole process is foundering because of embedded opposition within the regulator, that compliance with guidelines, polices and directives has been thrown out the window, and that external intervention is now becoming imperative.
The PAP did not “consult interminably” as has been implied by some, including John McCormick. In fact while (then) CASA Director Leroy Keith was a member PAP decisions were always unanimous, and veto was never exercised, says James Kimpton, former Ansett executive responsible for government relations and regulatory affairs (1983 to 1999), who later chaired the PAP: “I did say that CASA needed to explain its decisions so well that they were accepted, and generally Leroy rose to this challenge.”
In September 1997 Leroy Keith left after the CASA Board passed a no-confidence motion in his management strategy. Given Mr Keith’s outstanding overall performance, especially in regulatory reform, this was a highly controversial event, and Board Chairman Justice William Fischer and member Dr Clare Pollock both resigned in protest at the Board’s handling of its Director.
At about the same time the New Minister for Transport and Regional Development, the Hon Mark Vaile MP, replaced Minister John Sharp, and Dick Smith was appointed Chairman, vowing at the PAP table that this time he would “get it right.” Industry believes Dick may now agree however that “getting it right” remains a challenge.
On December 9, 1998, John Anderson, then Minister for Transport and Regional Services, told the House in a second reading speech:
In July 1996 the government announced that the Civil Aviation Safety Authority, CASA, would conduct a complete review of the civil aviation legislation in Australia, with the objectives of harmonising it with international standards of safety regulation and making it shorter, simpler and easier to use and understand. This was also an election commitment in the government’s “Soaring into tomorrow” aviation policy statement. The Morris Plane safe report and the Seaview commission of inquiry both supported the need for a review of Australian regulations and standards.
The purpose of this bill is to facilitate the findings of the review and provides for the introduction of a new set of regulations which are harmonised with civil aviation laws internationally……….The amendments proposed in this bill will facilitate the long awaited introduction of a regulatory regime for the Australian aviation industry which is not only harmonised with international practice but clear, concise and outcome focused. The government’s commitment to deliver this objective has been realised.
Well, not quite.
In October 2005 CASA’s (then) CEO Bruce Byron commissioned a comprehensive study of the agency’s regulatory structure by an “industry/CASA EASA (European Aviation Safety Agency) team.”
In the following year Byron, having briefly toured Europe and engaged with some of its EASA rule-makers, returned with the firm intention of enforcing the Government policy for outcome based-regulation justified by risk and cost benefits analyses. This would be done by replacing regulation that was currently under development, with a rule set based on EASA in what industry stakeholders described as “an ambitious but entirely achievable timetable.”
The new EASA approach, which Byron said already fitted Australian Government policy, was to develop new maintenance, repair & overhaul (MRO) rules that were closely harmonised with ICAO, EASA, FAA, and particularly Canada and New Zealand. This would replace CASA’s “Engineering Suite” which industry sources say comprised “some 9600 pages of complex and absolutely prescriptive maintenance laws, the breaching of any one of which would be a criminal offence.”
Because EASA did not yet have a full suite of general aviation MRO rules, Australia would draw on rules developed by a former consultative panel, abandoned in 2000, and on Canadian, US and New Zealand outcome-based rule sets with “acceptable means of compliance” customised for the Australian risk equation.
One stated outcome of the changes was to be that criminal offences would be limited to high-level genuinely criminal acts, as in other major aviation countries. All “unique” Australian rules were to go, and Australian aviation businesses of all sizes expected relief from what they described as a “regulatory straightjacket.”
Byron announced in a notice of proposed rulemaking (NPRM 0604MS) in October 2006 that CASA now planned to adopt a completely new regulatory format for the “maintenance suite” of regulations – CASR Parts 42, 66, 145 and 147. The NPRM explained in part:
Because of the availability of a new regulatory style pioneered by the European Aviation Safety Agency (EASA), CASA decided to amend the package of proposed regulations and commence a further period of consultation. CASA considers that it is necessary to seek comment on the changes made to the regulations as a result of areas of policy change and the new style of regulation writing. Some of these regulatory changes have, however, previously been consulted on.
One of the main drivers for Mr Byron to shift to the EASA style programme was that it could be delivered quickly and would purge the proposed Manuals Of Standards (MOS) of all the “hooks and barbs” that could be hidden in them. It was known that while CASA diligently consulted and produced some “vanilla flavoured” regulations, much of the MOS’s were not consulted on at all, and so became potentially a hidden “third tier of regulation” which industry believed would not be “disallowable documents,” and therefore not subject to Parliamentary scrutiny. At the time Byron stated that getting the maintenance regulations harmonised first would allow large Australian MROs to operate more effectively in the international market.
The NPRM commented at length on the outdatedness and complexity of the existing maintenance regulations, their lack of conformity and harmony with international regulatory practice, and their lack of clarity and conciseness. The decision however virtually meant binning the newly developed rules which had been almost ready to be sent for drafting, and starting again in a format that blended with that of EASA. It also created the problem that EASA rules had no coverage of general aviation, as well as giving those CASA officials who were opposed to most of the guiding principles anyway, an opportunity to launch a campaign which would turn the maintenance regulations into the mess they now represent.
The airlines were satisfied with the EASA style Regulations as they were. As EASA had no general aviation regulations, CASA believed that Australia could provide a body of ready-made material that could easily be uplifted into the EASA format.
Work on that aspect has yet to begin.
The EASA decision was unpopular within CASA and with many in industry because it negated much of the regulatory development work already completed.
On Monday October 26, 2004, Bruce Byron held a meeting of all his executive managers in Melbourne. He announced major intended changes in CASA direction, including a requirement to move CASA out of the administration of private general aviation, to focus primarily on the oversight of passenger-carrying operations, including support sectors such as large MROs and airports, and detailed a new approach to regulatory reform, supported by specific directives, that would to return it to conformity with its by now often-stated goals.
On Friday of the same week in Canberra at a meeting of some, but not all CASA executive managers, the mood was one of outright revolt, with complete rejection of Byron’s announcements. Byron was not present and it is understood no minutes were kept.
Three separate sources say that ‘the feeling of the meeting,’ rich in expletives, was expressed in terms of “We are the safety experts, we’ll tell the bastards what the rules are, and what the policy is, and if they don’t like it, we’ll run them out of the industry.”
The meeting “agreed” that all the reform program changes put in place in 1996/1999 were a grave mistake, and they would put that right because the Government had “got it wrong”.
Obviously interesting times still lay ahead. In fact the meeting also “decided” that in the face of concerted opposition, Byron would back down and they would have a free run; that the DOTARS and the Minister would not stand in their way, so there would be no more “pandering to the industry” in terms of consultation.
One attendee at the meeting declared that all the changes the PAP had put in place were ‘not Government policy,’ notwithstanding that the PAP briefed the Minister monthly.
Only a few days after the meeting, Byron called in three of the executives without involving his Deputy and Chief Operating Officer Bruce Gemmell. The three, who left CASA almost immediately, included Bill McIntyre, CASA’s (then) Executive Manager of Standards who had overseen the controversial rule rewrite.
A month after the meeting, on 24 November 2004, Byron issued two directives to Gemmell, with immediate effect. They were clear and uncompromising, and again spelt out the goals of the program using now-familiar phrases.
Directive 16/2004 – Development of Regulations and the Regulatory Framework – set out to establish guiding principles for the development of the regulatory framework and to provide clear guidance for the development of proposed aviation safety regulations.
The regulations were to be developed on the basis of addressing known or likely safety risks, with each proposed regulation to be assessed against the contribution it would make to aviation safety.
Wherever possible, the CASRs were to be drafted to specify the safety outcome required, unless, in the interests of safety and to address known or likely aviation safety risks, detailed requirements were to be presented.
This is exactly what EASA rules deliver, and is why the EASA committee recommended to Byron that adopting EASA maintenance rules would achieve another of his objectives (published elsewhere) which was:
“Wherever possible, aviation safety regulations are to be developed within a two tier regulatory framework comprising the Civil Aviation Act and the Civil Aviation Safety Regulations (CASRs), supported by advisory material that details acceptable means of compliance with the CASRs, together with appropriate guidance material.”
Manuals of Standards (MOSs) were to be developed only where there was a clear requirement, on the basis of safety, to mandate standards that for the purpose of clarity should not be contained in the Regulations.
Notably, the CASA lawyers had emphasised that a MOS would have to be referred to in the regulations, and would therefore become a third tier of legislation – highly undesirable and work-intensive when a MOS will contain material that needs regular updating in practice.
The content of proposed MOSs must also be assessed against the contribution made to aviation safety, and a MOS must only contain such standards as are clearly authorised by a particular regulation and must not be used as a vehicle for promulgating advisory material and other information.
And all proposed CASA Parts and MOSs were to be assessed against the guiding principles.
Directive 17/2004 – Regulatory Advisory Panels – required Regulatory Advisory Panels to be established in relation to each CASR Part under development, and the work of the panels to be separate from and additional to the existing consultative arrangements through the Standards Consultative Committee.
The RAPs were to advise the CEO on the proposed content of each CASR Part and, where applicable, the associated MOS, prior to publication of a discussion paper, NPRM or submission to the Minister, in relation to that Part.
The Advisory Panels would comprise:
- Chair of the Standards Consultative Committee
- Project Manager for the relevant Part.
- Manager from the relevant Standards branch (nominated by EM Standards)
- Member of the SCC (Nominated by the SCC)
- Member of the ASF (Nominated by the ASF)
- Inspector / Manager from the relevant area of Compliance (Nominated by EM Compliance)
- Independent member of the aviation industry (nominated by the CEO)
- Member of the Office of Legal Counsel (nominated by General Counsel)
- Representative of the Department of Transport and Regional Services
- Adviser from the Office of the CEO (Nominated by the CEO)
The Regulatory Advisory Panels, created after the Senate’s disallowance of Part 47, did useful work. James Kimpton chaired the only two sessions that were convened, which sorted out difficulties with the very light aircraft amendments to Part 21 and Part 137 dealing with Aerial Agriculture. The third dealt with Part 99 (drug and alcohol testing.)
The directives, which were fully in line with (then) Minister Anderson’s comprehensive charter letter to Mr Byron on his appointment in November 2003, came shortly after the departure of the three executives. It sent a strong message to other officials still pushing for the mountain of regulation that had been under preparation since CASA set aside the industry consultation input of the PAP in the late 1990s. The directives represented a 180-degree turn away from “prescriptive” regulations whose development over the past six years had ploughed ahead in the face of vigorous industry opposition.
Among the remaining symptoms of substantial internal resistance to CASA reform, had been embedded contempt for the reform process, continued antipathy to the concept of industry consultation, the determination of CASA to walk away from modern regulatory frameworks and guidelines, a growing confrontational mentality that has further damaged industry relations, and an apparent absence of acknowledgement of, and compliance with, international obligations.
Byron continued taking a vigorous stance against the activities of staff who had since 2000 successfully delayed the implementation of government aviation regulatory reform policy. He removed the regulatory reform program from of the general body of the Authority, and control of the program from the Legal Services Branch, to a new Planning & Governance Office reporting to the Office of the CEO. Major changes in the staffing of the Legal Services Branch occurred. He also set about ‘market testing’ all Canberra based support functions resulting in significant job cuts and cost savings, and commenced a process of moving operational activities out of Canberra.
Byron and a small team also got on with the job of internal reorganisation and restoring industry relations despite resistance at almost every step. They achieved some notable reforms including the removal of several employees and the sidelining of others to positions where they were less able to obstruct reform.
But now, in 2010, harmonisation with international regulation along with the long-sought simplicity, ‘plain English presentation,’ brevity, clarity and outcome-based format are now further away than ever, complain critics of the process who were experienced in regulatory development, and they believe they understand the reasons, pointing to the “Maintenance suite” of regulations as an example, and a possible key to the ongoing problem.
“Shorter” regulations in particular remain a fantasy. We are told for example that the USA’s equivalent Part 91 is about 33 pages when reduced to standard legislative A5; that New Zealand’s equivalent is about 39 pages; but that Australia’s Part 91 is about 250 A4 pages, which will probably increase to something like 350 pages when in A5 format.
Why so much more paper? The reason for this has been a stated insistence within CASA’s legal staff that “the government requires” that Australian aviation regulations must be framed in a criminal law format, along with penalties.
Nobody understands where this claimed “requirement” originates, least of all when they read statements like this one from the Australian Law Reform Commission (ALARC) Report 95: Principled Regulation:
Statement of Principle
The distinction between criminal and non-criminal (civil) penalty law and procedure is significant and adds to the subtlety of regulatory law. This distinction should be maintained and, where necessary, reinforced. Parliament should exercise caution about extending the criminal law into regulatory areas unless the conduct being proscribed clearly merits the moral and social censure and stigma that attaches to conduct regarded as criminal.
The ALARC Report also explains, for those who find that hard to understand:
The main purposes of criminal law are traditionally considered to be deterrence and punishment. Central to the concept of criminality are the notion of individual culpability and the criminal intention for one’s action.
Another government publication goes into more detail. The Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers, published under the auspices of the Minister for Home Affairs and Justice and supported by the Criminal Justice Division of the Attorney-General’s Department, which has a role in advising on the framing of offences and other enforcement powers. The purpose of the guide is to assist agencies to frame these types of provisions.
That document further explains the concept of criminality in this context:
………..A key characteristic of a crime, as opposed to other forms of prohibited behaviour, is the repugnance attached to the act, which invokes social censure and shame.
Certain conduct should be almost invariably classified as criminal due to the degree of malfeasance or the nature of the wrongdoing involved. Examples include conduct that results in physical or psychological harm to other people (murder, rape, terrorist acts) or conduct involving dishonest or fraudulent conduct (false and misleading statements, bribery, forgery). In addition, criminal offences should be used where the relevant conduct involves considerable harm to society, the environment or Australia’s national interests, including security interests.
Since murder, rape, terrorist acts, false and misleading statements, bribery, forgery and similar offences are relatively rare events in aircraft maintenance hangars, critics of the proposed aircraft maintenance regulations are at a loss to understand why, despite all the published instructions to the contrary, the regulations should be thus framed, or for that matter who authorised these deviations from recommended practice, and why.
For any drafter who still doesn’t understand their obligations, the Guide offers further assistance to the decision-making process:
In many cases it will be difficult to determine when a given provision should be criminal or civil in character. Factors that should be considered in this context include the following.
- What is the nature of the conduct sought to be deterred? What are the circumstances surrounding the proposed provision?
- Where does the proposed provision fit in the overall legislative scheme?
- Does the conduct seriously harm other people?
- Does the conduct in some way so seriously contravene our fundamental values as to be harmful to society?
- Is it appropriate to use criminal enforcement powers in investigating the conduct?
- Is the criminal law appropriate for dealing with the undesirable conduct in question?
- How is similar conduct regulated in the proposed legislative scheme and other Commonwealth legislation?
- If the conduct has been regulated for some time, how effective have existing provisions been in deterring the undesired behaviour?
- What level and type of penalties will provide appropriate deterrence?
Yet the whole process has been beset by the “criminal code” mind-set for almost as long as anybody can remember, with repeated attempts to return the rules to the disastrous state that made reform necessary in the first place, and all along the way it has been resistance from Canberra and the varying policies and practices of successive CEOs – not the requirement to consult with industry – that has been at the heart of the endless delays.
We asked the Attorney-General’s Department what systems are in place to ensure compliance if differences have not been proposed and approved. The A-G Department will only say:
The Minister for Home Affairs and Justice, supported by the Criminal Justice Division of the Attorney-General’s Department, has a role in advising on the framing of offences and certain other enforcement powers. To assist agencies to frame these types of provisions the Department, with the authority of the Minister, publishes the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.
The Guide consolidates a range of principles and precedents relevant to the framing of offences and enforcement provisions to assist agencies to draft provisions.
Departures from the principles contained in the Guide may be necessary or justified in the context of a particular legislative framework.
The Senate Standing Committee for the Scrutiny of Bills and the Senate Standing Committee on Regulations and Ordinances regularly refer to the principles contained in the Guide when considering proposed legislation, and may draw Senators’ attention to provisions that depart from those principles.
This appears to say that regardless of all the guidelines, parliamentary explanatory memoranda, charter letters, ministerial and CASA executive directions, political statements about the program’s aims and something like 20 years of nonstop industry protest, the Attorney-General’s Department has handed back legal drafting to CASA officials who are acting in apparently reckless defiance of all of those definitions and prescriptions, and that the industry has no other apparent redress than to complain to a Senate committee after the damage is done.
One stated outcome of Byron’s changes was to be that criminal offences would be limited to high-level genuinely criminal acts, as in other major aviation countries. All “unique” Australian rules were to go, and Australian aviation businesses of all sizes expected relief from what they described as a “regulatory straightjacket.”
The in-house hostility to Byron and his reforms continued, and part of the process was a campaign to discredit him and members of his team. In the case of some team members, this took the form of formal complaints alleging a range of criminal misconducts. Each of these was duly investigated by external agencies, and found to be without merit. As he had foreshadowed since his appointment in 2003, Byron left CASA following completion of his five year term, although he stayed on for some months while the Government sought a replacement. The campaign against other executives however became so widespread and vindictive that several finally decided that enough was enough; that they could not hope to achieve what needed to be achieved in that working environment, and left the organisation.
Another new director
Byron’s replacement, John McCormick, joined CASA in March 2009. At least three involved aviation identities have since written personally to Mr McCormick expressing their continued concern over regulatory development, but say there has been no response.
Meanwhile the “legal drafting” process has turned Byron’s whole EASA based maintenance suite on its head, making it literally unworkable, according to individuals who are (or were) close to the process. But it appears that Director John McCormick, now under political pressure to end the 21 year old farce, is pushing ahead regardless.
Former AOPA President Bill Hamilton and Ken Cannane (who was CASA’s Acting General Manager of the Regulatory Framework Office, later its Head of Maintenance & Personnel Standards, and is now Executive Director of the Aircraft Maintenance, Repair & Overhaul Business Association) report that at the last SCC meeting, John McCormick virtually acknowledged that the resulting rules would not work, by announcing that in the future legislative instruments (in the form of variations, concessions and exemptions) would be used where the rules “don’t work”.
Some of Bruce Byron’s energies had been directed towards stopping the widespread use of such variations, concessions and exemptions, as they were proof of the inadequacy of the existing rules – the whole reason for the reform program in 1996.
CASA advises that it is now its Standards Development Branch, not its Legal Services office, which provides OLDP with drafting instructions. We’ve now asked CASA: “What I am interested in, is the process by which the lay draft is converted by the Standards Development Branch into legalese and allocated penalty points, especially if lawyers are not involved?” The response was to be edited into this article with an explanatory note, but four years later no response has yet been provided.
“There are mountains of important work still to do,” says Bill Hamilton. “We have no Part 91 [general operating and flight rules,] we have no Part 135 which is what we now call charter, no Part 121 [High Capacity Transport] and no maintenance rules, so we have none of the really important elements yet.”
Whoever is responsible, says Ken Cannane: “instead of harmonisation we have wound up with a draft set of maintenance rules that is unlike anything anywhere else in the world, and a stream of legislation still to be developed, examined, approved and published.”
An example is (our highlighting):
145.065 Provision of maintenance services
(1) If a Part 145 organisation provides maintenance services, it must provide the services only in accordance with:
(a) its exposition; and
(b) the approval rating for each class of aircraft or aeronautical product for which the organisation is approved to provide maintenance services; and
(c) the approval rating for each specialist service that the organisation is approved to provide; and
(d) any limitations applying to an approval rating mentioned in paragraph (b) or (c); and
(e) the privileges that apply to the approval rating under the Part 145 Manual of Standards.
Penalty: 50 penalty units.
(2) An offence against subregulation (1) is an offence of strict liability.
“That a subjective interpretation of completion of a maintenance task could constitute a 50 point strict liability offence is absolutely unacceptable, and appears to be a complete breach of the Office of Home Affairs guidelines for establishing criminal offences — but nobody in CASA seems to care.
“The very concept of being able to write an exposition (maintenance procedures manual) that covers each and every process, in detail, for each and every aircraft, is lunacy of a high order. The idea that each and every company’s ‘Operations Manual’ or ‘Maintenance Manual’ is to be subject to Parliamentary disallowance —- words fail me !!!!”
“The Guide is quite clear in how you apply ‘strict liability’. An Exposition or MoS are not legislation, so local interpretations will apply. How can you be held accountable to documents that are not in legislation? Expositions are not subject to Parliamentary scrutiny and ‘privileges that apply to the approval’ is subjective.
“It looks like our next step will be writing to the Scrutiny of Bills Committee listing our concerns once it enters Parliament. This rule, like so many others in this package, is a fiasco.”
An increasingly costly fiasco however. In September 2007 CASA admitted to a Senate committee that up to that time $144 million had already been spent on its Regulatory Review Program. It added that its estimate for the current year (2006-07) was $24 million, and the projected costs for 2007-08 were another $23 million. That pushed the expected total bill to a staggering $191 million in 18 years. Assuming the following five years equalled the 2008 figure, we now seem to have run up a total bill for $306 million!
Former industry PAP delegates now believe the current process will continue generating material that will eventually have to reversed until the “resistance movement” is identified and neutralised, and until the RRP process is brought into uncompromising alignment with its stated goals and into compliance with published government policy.
They also believe that a solution lies in revival of development work already done and later abandoned, through the establishment of a small, focused and properly directed independent group which could finalise the whole project in about 12 months.
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