A new approach to enforcement

The document below was circulated widely in March 1998. Yes, that’s 15 years ago. It brought a glimmer of hope to an industry that was already beset by the out-of-control advance of adversorial, prescriptive and punitive regulation. Its fate should be part of the terms of reference of the government’s planned major external review of Australian aviation safety and regulation.

What went wrong?

Perhaps the reviewer/s might pick up some further signposts HERE?

*  *  *  *  *  *

The Civil Aviation Safety Authority (CASA) was established by the Commonwealth Parliament and given the responsibility for the safety regulation of civil aviation in Australia. In order to enable it to properly discharge this responsibility, CASA was given extensive powers to regulate the aviation industry.

CASA’s enforcement policy determines the way CASA uses its powers to regulate the industry. With limited resources, CASA must ensure that it gives proper focus to the exercise of the powers in order to discharge the trust given to it by the Australian public through the Commonwealth Parliament. It must ensure that it uses its powers in a way that inspires the confidence of the travelling public. It must also use its powers in a way that is, and is seen to be, fair, firm and consistent.

The new CASA Board has recently examined the current CASA enforcement policy and has decided that changes are necessary in order to enable CASA to more properly discharge its responsibility to the Australian public.

The new CASA Board believes there are at least three reasons why a new approach to enforcement is needed.

First, aviation safety depends upon there being a high level of trust between CASA and the industry.  The Board is concerned that over recent years the level of trust has declined.  Some parts of the industry believe that CASA’s current enforcement processes are arbitrary, inconsistent and unfair. Key organisations are advising their members not to speak to CASA about incidents or rule contraventions. There is much work to be done by both CASA and industry to repair the damage that has been done, but the Board believes that a new approach to enforcement is a good place to begin.

This is not a new problem and was clearly expressed by Sir Donald Anderson, the Director-General of the Department of Civil Aviation, in an open letter to the industry dated 16 October 1972. Sir Donald stated:

I have been concerned for some time by the number of incidents which reveal an element of reluctance on the part of pilots to seek help. It seems to me that it may be helpful if I, as Director-General, give some lead on the rapport which I believe needs to exist between pilots and others in the system if we are to avoid some of the mistakes that are evident. It is important that no barrier should exist to inhibit a readiness by all to give and take in the common interest of safety

If an atmosphere of reluctance or hostility develops to a point where there is discouragement from making full use of the services available, the end result could be disastrous in critical operational situations.

A similar concern was expressed 23 years later in the Plane Safe Report of the Parliamentary Committee chaired by Peter Morris MP. The Committee stated:

“The committee was dismayed by the denigration, venom and viciousness of the evidence. This attitude of mistrust if not mutual contempt between the participants places a heavy load on CASA in fulfilling its statutory function of promoting higher safety standards through education, training, advice and consultation.”

Secondly, the Board has decided that CASA needs to give much more emphasis to its safety education and promotion functions. However, CASA can only do this efficiently if it has quality information available to it about contraventions of the safety rules. Pragmatically, no matter how many resources are committed to the task, the very nature of aviation means that the majority of contraventions will always remain undetected. The Board believes that effective safety education and promotion and a new approach to enforcement that encourages the voluntary reporting of honest contraventions go hand in hand.

It is of some concern to the Board that there appears to be a significant decline in the voluntary reporting of safety incidents under the CAIR system. In the November 1997 edition of ”Asia-Pacific Air Safety”; the Bureau of Air Safety Investigation reported that the number of CAIR reports had decreased from an average of 400 per year in the period 1988-1994, to 270 in the 1996-1997 financial year.

Finally, the Board knows that the vast majority of the industry is committed to working within the safety rules.  A new approach to enforcement is needed to ensure that scarce and expensive investigation and enforcement resources are not wasted on pursuing this segment for minor, inadvertent or technical contraventions that do not significantly affect safety.  CASA needs to have the capacity to vigorously pursue those who choose to operate outside the rules and those who put the lives of fare-paying passengers at risk.

This is consistent with the final report of the Seaview Royal Commission where the Commission recommended that “strong action, whether prosecution or suspension or both, should be taken against those who deliberately or repeatedly flout the rules, or compromise safety”; (recommendation 6). The Commission made it clear that it was “not urging prosecution in every case”; and that it was focussing on the safety of operations involving fare-paying passengers. It stated that the “travelling public has a right to expect that their safety will be protected by the safety regulator.”

Underlying philosophy

The basic philosophy underpinning the Board’s new approach is that:

·         A person who reports making an honest mistake generally should not be prosecuted or fined, nor should they have their licence, certificate or authority suspended or cancelled;

·         There should be a measured response to less serious contraventions of the safety rules which should involve counselling, warnings, training or administrative fines, rather than either criminal prosecution or the suspension or cancellation of licences, certificates or authorities;

·         Decisions relating to criminal prosecutions, the imposition of administrative fines and the suspension or cancellation of licences, certificates or authorities should be made centrally, in a structured way, by a single senior manager directly accountable to the Director and the Board in order to ensure consistency and fairness in approach;

·         Due process (i.e. the right to be heard by an impartial decision-maker) should be the primary consideration in the enforcement process, except in those rare cases where there is an immediate, serious threat to the safety of fare-paying passengers; and

·         People who consciously choose to operate outside the rules or who put the lives of  fare-paying passengers at risk should be prosecuted and removed from the industry, no matter how powerful they are, or are seen to be. The new CASA Board is committed to implementing this policy and recognises that CASA must always keep in mind the hard-learnt lessons resulting from the Seaview and Monarch accidents.

Overview of the proposed new approach to enforcement

Counselling, warnings and training

Generally, the response by CASA to any person who admits to a contravention of the Civil Aviation Regulations will be, at most, to give the person counselling or a warning.  CASA will not fine or prosecute the offender or suspend or cancel their licence, certificate or authority. If the nature of the contravention clearly indicates that the offender lacks skills or knowledge that they should have, CASA may require the offender to undertake further training.

There are, of course, a few provisos. CASA may respond to a contravention differently if:

·         The contravention is deliberate, fraudulent or demonstrates a reckless disregard of the safety rules;

·         A person admits to a contravention of which he or she was previously aware, only during the course of a scheduled or unscheduled audit by CASA inspectors;

·         The contravention is part of a pattern of contraventions committed by the person; or

·         The contravention seriously endangers the safety of fare-paying passengers, other aircraft or people on the ground.

This policy will generally not apply to contraventions of the Civil Aviation Act 1988 (e.g. operating in commercial operations without a valid AOC, knowingly or recklessly carrying or consigning dangerous goods on board an aircraft, knowingly or recklessly operating an aircraft without a valid certificate of airworthiness or maintenance release).

The Board will also recommend to the Government that it enact legislation whereby persons who commit less serious contraventions can enter into voluntary undertakings with CASA in relation to their future conduct (e.g. agreeing to undertake specific training). These undertakings would be capable of being directly enforced by CASA.  With this mechanism, many minor contraventions could be dealt with by undertakings alone.

Infringement notices (Administrative fines)

The infringement notice scheme established under the Civil Aviation Regulations has not been implemented to date. 

The Board proposes to update the infringement notice scheme in order to increase the range of contraventions under the Regulations that are subject to the scheme. The Board also proposes to utilise infringement notices as CASA’s main response to any contraventions covered by the infringement notice scheme and which are discovered by CASA inspectors during the course of scheduled or unscheduled surveillance. The administrative fines payable under the infringement notice scheme will range from $110 to $550.

If a person pays the administrative fine, that will dispose of the matter and no further action will be taken. However, paying an administrative fine will not be an admission of liability.

If a person served with an infringement notice believes that an infringement notice was given to them without good reason, they will have the right to request CASA to review the matter or to have the matter decided by a court.  Of course, if the matter does go to court, CASA will have to prove its case beyond reasonable doubt in the usual way.

Infringement notices will not be issued in situations where:

·         The contravention is part of a pattern of contraventions committed by the person; or

·         The contravention seriously endangers the safety of fare-paying passengers, other aircraft or people on the ground.

These sorts of contraventions will be dealt with by criminal prosecution.

Indemnity

To assist in the gathering of information about contraventions, the Board will recommend to the Government that existing legislation be amended so that a statutory indemnity from prosecution be given to operators and flight crew who voluntarily disclose contraventions of the Civil Aviation Regulations in a confidential reporting system. The confidential reporting system will be based on the proven system used in the United States known as the Aviation Safety Reporting System. There will be no limit on the number of reports a person will be able to submit but an operator or individual will only be able to take advantage of the indemnity once every 5 years. Reports will need to be submitted within 10 days of an incident.

Subject to discussions with BASI, the Board believes that the existing CAIR system would provide an appropriate mechanism within which to introduce such an indemnity system.

No indemnity will be available for:

·         Contraventions that are deliberate, that demonstrate a reckless disregard of the safety rules or that involve fraudulent behaviour on the part of the offender;

·         Contraventions of the Civil Aviation Act 1988; or

·         Contraventions that seriously endanger the safety of fare-paying passengers, other aircraft or people on the ground.

Suspension or cancellation of licences, certificates or authorities

The Board believes that CASA should only take action to suspend or cancel licences, certificates or authorities as a last resort and only where there is an immediate threat to safety. In no circumstances will suspension or cancellation action by CASA be used as a form of punishment.  Normally, any suspension or cancellation action in relation to commercial operations will be taken against the holders of Air Operator’s Certificates and Certificates of Approval, rather than against individual pilots or engineers employed by the certificate holders.

All decisions to suspend or cancel licences, certificates or authorities will be made by a single senior manager in Central Office, or by the Director personally, in accordance with due process.  CASA will do all it can to ensure that a person whose licence, certificate or authority is suspended or cancelled has ready access to full external merits review in the AAT. Once before the AAT, CASA will conduct itself as a “model litigant.”

Except in extreme cases involving a serious and immediate threat to the safety of fare-paying passengers, the power to suspend under Regulation 265 pending an examination will no longer be used automatically whenever a person is requested to undertake an examination to test continued competency.

CASA will retain a residual power to immediately suspend a licence, certificate or authority without normal due process under Regulation 268.  This power will only be exercised in extreme circumstances, where there is a very serious and immediate threat to the safety of fare-paying passengers or other third parties. The power will be reserved for the personal use of the Director. I think most members of the industry and the community generally would consider the existence of such a power to be justified.

Automatic stay of suspension/cancellation

The Board will recommend to the Government that the Civil Aviation Regulations be amended to provide that, if a person applies to the AAT for the review of a decision by CASA to suspend or cancel a licence, certificate or authority under Regulation 269, CASA’s decision will be automatically stayed until the AAT decision is handed down.

Decisions under Regulation 268 will not be subject to the automatic stay procedure.

Criminal prosecutions

CASA will investigate any contraventions that:

·         Are deliberate or that demonstrate a reckless disregard of the safety rules;

·         Are part of a pattern of similar contraventions by the same individual or organisation;

·         Involve contraventions of the Civil Aviation Act 1988; or

·         Seriously endanger the safety of fare-paying passengers, other aircraft or people on the ground.

CASA’s investigators will give priority to matters involving the safety of fare-paying passengers.

In any matter where an investigation results in there being admissible, reliable and substantial evidence of a contravention, the matter will be referred to the Director of Public Prosecutions (DPP) for prosecution. Such decisions will be made by a single senior manager directly accountable to the Director and the Board. The reference to the DPP will always include a strong recommendation for prosecution in any case that involves a deliberate or reckless contravention or a contravention that seriously endangers the safety of fare-paying passengers, other aircraft or people on the ground.

The Board is presently assessing the feasibility of CASA conducting its own prosecutions for less serious contraventions of the Civil Aviation Regulations. Conducting prosecutions “in-house” will speed the process of having matters brought before the courts. Any such proposal will need to be approved by the Director of Public Prosecutions who is statutorily responsible for initiating all prosecutions of Commonwealth laws.

Section 30A of the Civil Aviation Act 1988 allows a court which has found a person guilty of an offence to exclude the person from an aviation-related activity for a specific period. To date, this provision has been little used.  In the future, CASA will seek section 30A orders whenever it has concerns about the ability and willingness of a convicted offender to operate safety.

Comments

I welcome comments on the Board’s new approach. Written comments should be sent by Friday, 27 March 1998, to:

Paul Fenton-Menzies

Acting Senior Legal Counsel

Civil Aviation Safety Authority

GPO Box 2005

CANBERRA  ACT  2601

Fax: 02 6217 1607

E-mail: mailto:fenton_pa@casa.gov.au

Implementation

The Board will consider comments on the new enforcement policy at its meeting in April 1998. The Board will finalise the new policy after consideration of all comments.

The Board proposes that the new enforcement policy will be in force by no later than 1 September 1998. This will, of course, depend on the finalisation of any necessary legislative changes to give effect to the new policy.

Dick Smith

Chairman

5 March 1998

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About Paul Phelan

Paul Phelan flew for over 50 years in private, charter, corporate and regional aviation, worked in senior management roles with a major regional airline, and retains his license. In parallel he has been writing for Australian and international aviation journals for well over 20 years on all aspects of aviation including aircraft evaluation, flying, industry affairs, infrastructure, manufacture, regulatory affairs, safety, technologies and training. He has won three separate National Aviation Press Club awards for "best technical aviation story of the year."

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