McCormick rebuffs Kiwi rules – Opinion

In his April “CASA Briefing” Director John McCormick has expounded on several points that have also been raised by numerous respondents to Australia’s Aviation Safety Regulation Review (ASRR), and which are currently under consideration by the Panel.

The Director’s opening shots are aimed at the popular belief that Australia would be (or would have been) better off adopting and adapting New Zealand’s aviation regulatory rule set from the start.

The language and subject matter of the briefing appear to reflect the style of CASA’s Office of Legal Services.

A widely experienced industry observer comments: “For a start I think it’s totally inappropriate that a government agency should be publicly arguing its position on the New Zealand rules issue while an enquiry commissioned by the Minister and covering that specific issue among others is still running. What he actually appears to be saying is, ‘we know there’s an enquiry going on, but we’ll go ahead and do it our way anyway,’ which is pretty well what happened with the department’s response to the senate committee’s unanimous recommendations in its Pel-Air/CASA/ATSB report.”

Clearly the Director disagrees with the NZ proposition:

There has been some comment in recent months suggesting a simple solution to updating the aviation safety regulations would be for Australia to adopt the current New Zealand rules. While this may sound attractive to some people there are real issues to be considered. Right now the New Zealand rules could not simply be adopted and enforced in their current form as Australian regulations. Many provisions in the New Zealand rules are not written in a manner consistent with Australian legislative drafting standards.

ProAviation has studied examples of the aviation regulations of several ICAO contracting states, and we have been unable to identify any rules that are written in “a manner consistent with Australian legislative drafting standards.”

In addition, some content is not consistent with the definitions, terminology and requirements set out in our Civil Aviation Act and Regulations. This means adopting the New Zealand rules could well require a broad reconsideration and revision of the Australian aviation safety legislation in its entirety. If we went in this direction we may need to amend the Civil Aviation Act and rework the new Civil Aviation Safety Regulations that have already been made. This would be a long-term undertaking, involving several additional years of legislative redrafting and industry consultation.

Mr McCormick appears to overlook the fact that amending the Civil Aviation Act and reworking the CASRs was exactly what the whole project was about when it was first launched with clear, unambiguous guidelines and precise directives that complied with the founding principles established by (then) Minister John Anderson. However the assertion that sorting it out would take “several additional years of legislative redrafting and industry consultation” appears to assume the task would be assigned to those who spent all those years steering the program into its present botched state.

ProAviation has spoken to several people who were involved in the Program Advisory Panel processes over a lengthy period, and the following direct quotes from various PAP participants during the process, throw an entirely different light on the management of the regulatory reform program (RRP) from what is being put forward by CASA:

  • “Regarding the current status of the regulatory reform program, the best illustration I’m aware of is the truly hopeless flow of trashed maintenance regulations now [in 2010] being returned from the Attorney-General’s Department, which frankly might just as well have acknowledged (a named lawyer’s) authorship.”
  • “The PAP never “consulted interminably” as John McCormick and others seem to imply. While Leroy Keith was a member of the PAP, and to the extent that PAP decisions were usually unanimous, this meant that he, or anyone else for that matter, rarely (if ever,) exercised a veto. We did say, via the PAP Chair, that CASA needed to explain its decisions so well that they were accepted, and generally Leroy rose to this challenge.”
  • As far back as the end of 1998 we had Parts 21 through 35 in place, in law, and we had Part 91 (General Operating and Flight Rules); Part 61 – licensing for pilots, Part 66 – licensing for engineers; and a lot of other rules more or less ready to go. However with a change in Director shortly thereafter (from Leroy Keith to Mick Toller), the departure of some of Leroy’s people and the appointment of a new RRP manager, all that went on the back burner because within CASA all knowledge and acknowledgement of the PAP era was extinguished – it just wasn’t referred to – it was like it never happened.”
  • “By about 2004 -2005, Part 91 was ready to go (to the attorney-General’s satisfaction and to the DOTARS’ satisfaction.) It was substantially the same as the one that we left in 1998. Just bear in mind that in 2005 Part 91 was ready to go into law at that point.”
  • “All these years later, the state of the maintenance regulations is that they are unusable and they will demolish all the remaining small maintenance organisations that haven’t already disappeared.”
  • “CASA’s ‘blame game’ variously attributes the 20-plus year fiasco to changes of management with each new director, and to “endless consultation.” While management changes certainly played a role, its claims regarding consultation are untrue. The Program Advisory Panel (PAP) was wound up by CASA in the late 1990s because the Minister didn’t extend it. It was only intended to be for two years anyway, because it was expected that by the end of two years the PAP would have had the job completed.”

It is also disturbing that Mr McCormick continues to imply that the rewrite of various rule sets is meant to give industry more time to understand them and prepare for their implementation. In our view this is an insult to the intelligence of an intelligent industry, of the general public, and of the parliamentarians.

The perception of industry in all affected sectors we have consulted is that the failure of the regulatory review program is due to the influence of various underqualified individuals and groups with their own motivations, personal or industrial, seeking to embed their philosophies in the regulations under which aviation must operate.

Another issue that needs to be resolved is the “criminalisation” of aviation law that is proposed, which has been likened to having the police write the motor traffic regulations. CASA has always insisted that this was “government policy.” A lengthy Freedom of Information process with CASA has failed to help us identify the person who made that decision.

However a response from the Attorney General’s Department as to the source of this philosophy makes it quite plain that despite the protestations of the (then) head CASA lawyer, that initiative was solely a CASA decision:

“The Attorney-General’s Department would like to provide the following points of clarification:

“The new draft maintenance suite of Civil Aviation Safety Regulations were drafted by the Office of Legislative Drafting and Publishing on instruction from CASA. 

“The document ‘A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers’ is a guide only.  The decision as to whether conduct needs to be proscribed through the application of criminal penalties is a decision for CASA having regard to the principles in the Guide.”

It is arguable that the most expeditious and effective way out of the chaos would be to trace back in the history of regulatory development to the point where it all started to go wrong, re-adopt the guiding principles under which the RRP and the PAP were launched, enshrine those principles in the program’s marching orders, re-engage with the industry in a PAP format, and identify and eliminate enemies of the concept of genuine consultation.

That process might well demonstrate that a lot of the necessary work has already been done.

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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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