Category Archives: Opinion

Restoring Trust?

Paul Phelan, Dec 16, 2016

Highlighting the fracture of industry/regulator relations clearly and repeatedly, the government-commissioned Aviation Safety Regulation Review (ASRR) Panel used the word “trust” or one of its derivatives no fewer than 26 times throughout its discussion, analysis and recommendations.
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Get on with it!

The national aviation authority’s new director won’t have to look very far for examples of systemic breakdowns that urgently need fixing. The regulator’s most recent assault on the aviation industry’s trust and respect displays most of the hallmarks of similar actions over the past 20 years, and could easily be interpreted as the adoption of a “scorched earth policy” by elements whose departure may be imminent. Continue reading

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What next for regulatory reform? – Opinion

The Aviation Safety Regulation Reform (ASRR) Panel delivered its report and recommendations on time at the end of some four months of exhaustive and far-reaching consultation with all aviation sectors. The Minister presented the Panel’s work for public review promptly, providing another 30 days for further comment, which expired on Monday, June 30.

What happens next, and in what sequence, is much less clear.

Plainly even if every one of the ASRR Panel’s 37 recommendations were to be adopted without amendment, (an obviously unlikely scenario), the recommendations would still need to be transformed into a plan of action that covers the enormous range of regulatory matters that were addressed in the ASRR process. These include hundreds of items of change, many of them interactive, and most probably calling for change in the administrative, airworthiness, enforcement, flight operations, legal, licensing, medical, recruitment/training, and other areas – all to tight timetables to keep the ball rolling.

Of all the industry disquiet expressed in submissions to the Panel, by far the most frequent and prominent has been the breakdown of the mutual trust and respect that once existed between the regulator and industry.

This situation, unmentioned in previous studies and reports, is observed and discussed with examples in almost all the published submissions, and is further highlighted by the 31% of submitters who requested confidentiality.

It becomes obvious therefore that there are people within the national aviation authority as it stands who are un-equipped and unwilling to be part of essential restructure, and that the whole task will have to be assigned to a newly-formed team, under a newly-appointed director reporting to a newly formed board.

The critical trust deficiency was mentioned only once in the ASRR’s recommendations at item 14, but was expanded on at several points in the Panel’s summary of its deliberations. The recommendation is:

14.   The Civil Aviation Safety Authority changes its regulatory philosophy and, together with industry, builds an effective collaborative relationship on a foundation of mutual understanding and respect.

ProAviation suggests that if this recommendation were effectively implemented, the identified problems would begin to disappear almost immediately, albeit it with a golden handshake in some undeserving cases.

It is notable that the wording of the recommendation directly links changes in CASA’s “regulatory philosophy” with the re-building of “an effective collaborative relationship on a foundation of mutual understanding and respect.” Given that the collapse of those values is at the root of virtually all the problems the Panel identified, the corollary is that if CASA does not change its regulatory philosophy, there can be no prospect of rebuilding trust and understanding.

And there could therefore be no prospect of reform. Simple as that!

It needs also to be noted that although the Panel wisely chose not to put forward prescriptive solutions, its general analysis offered ample guidance on the nature and scale of the problems that the incoming board and CEO need to fix. The following extracts are just examples from the Panel’s deliberations that raise the issue of trust and discuss credible remedies:

  • Due to the present adversarial relationship between industry and CASA, Australia lacks the degree of trust required to achieve this important aim [collaborative relationships]. Sharing safety data is a fundamental principle of good safety management.”
  • “The Panel concludes that CASA and industry need to build an effective collaborative relationship on a foundation of mutual trust and respect. Therefore, CASA needs to set  a new strategic direction.”
  • “Public sector organisationsasked act in a way that maintains the trust placed in the organisation by the government  and in such a way that the public interest is maintained or improved over time.”
  • While CASA appears to be trusted by many in government,the industry’s trust in CASA is failing, compromising CASA’s Stewardship,and industry perceives Casas Accountability as being compromised.” [ASRR’s highlighting]
  • Concerns over data flows will continue to be an issue whenever there is a breakdown of trust between industry and CASA.”
  • “Although the rationale for ‘firmness’in regulatory oversight is understood, and clearly has a place, the industry’s assessment is that CASA takes an overly aggressive position, which is having an overriding and consuming influence over the aviation community and damaging trust.

Of course reform is still several giant steps away, because it can only work when the new regulator’s new board and new management all accept that there exist obstructions that will take a cathartic change of corporate mindset to remove. The retraining or removal of the obstructionists will also be vital and should not be underestimated, because the philosophies that created the present system are still extant.

However the potential rewards speak for themselves. For a start, the 20 year farce of faux regulatory reform should be replaced by a rule set that delivers what was claimed for the original RRP project. That would be accompanied by genuine and effective industry consultation along lines recommended by the Panel, realistic consultation timelines, and (hopefully) the input and guidance of a suitably qualified body such as the Australian Law Reform Commission, whose objective (stated on its website) is to Make recommendations for law reform that:

  • “bring the law into line with current conditions and needs;
  • “remove defects in the law;
  • “simplify the law;
  • “adopt new law more effective methods for administering the law and dispensing justice, and
  • “provide improved access to Justice.

“When conducting an enquiry, the ALRC also monitors overseas legal systems to ensure Australia compares favourably with international best practice.”

Those objectives seemed to be tailor-made for Australia’s current aviation regulatory system.

At an early point, as when any major conflict seems to be drawing to a close, it may be necessary to declare a form of “ceasefire” to ensure that the processes of reform are not further clouded by hyperactive over-regulation on the part of individuals or groups. We have in fact already heard reports of harassment that seem to suggest the reopening of old and far from fully healed wounds, and some recent “initiatives” in the medical and airworthiness areas also appear to suggest a scorched earth philosophy. Surely any new regulatory interpretations or enforcement activity should receive close scrutiny for non-compliance with published procedures, due diligence, procedural fairness and the rule of law.

An early priority must be LAME and pilot licensing issues, which will be familiar to anyone who has been following the ASRR dialogue. These reach into the career prospects of both groups, and must be unravelled and resolved.

Also there’s considerable disparity between contributors to the ASRR on key specific issues, much of which is not fully resolved by the Panel’s recommendations, and needs early resolution. A good example (but far from the only one) is the question of whether two-tier or three-tier regulation represents the more effective model, and there are credible and well-regarded supporters for both scenarios.

At best, the new board and executive would have as a starting point at least two navigation aids:

First, their own copy of the ASRR Panel’s report and access to all the submissions to the ASRR, will help identify and understand most of the problems they are responsible for solving along with many of the solutions. This is important because it is probable that implementation of many of the Panels recommendations are likely to require amendments to the Civil Aviation Act;

Second, Bruce Byron’s two directives: 16/2004 – Development of Regulations and the Regulatory Framework, and 17/2004 – Regulatory Advisory Panels – set out an optimal prescription for getting the regulatory review process back on track. However the two directives were later replaced by Directive 1 of 2007 which consolidated them while also requiring risk justification of all regulations and benefit justifications of all regulations.

With the departure of the present CEO imminent, surely it would be timely now for the Minister to name without further delay the new CASA board and also the new CEO, who will face a daunting challenge on Monday September 1.

Meanwhile, it’s an educational experience, as well as being a guide to the challenges faced by an incoming administration, to re-read CASA’s own reporting of announcements by (then) responsible Minister John Anderson on the new way forward in 2002 as the Minister saw it.

 Article from Flight Safety Australia November-December 2002

Far Reaching reforms to the Civil Aviation Safety Authority (CASA) announced on 18 November will strengthen its accountability, improve consultation with industry and temper its ability to act as “judge, jury and executioner,” while maintaining its powers to take appropriate safety action.

The Deputy Prime Minister and Minister for Transport and Regional Services, John Anderson, said aviation safety and compliance will be improved in the capital cities and regional areas under the reforms.

The reforms, proposed to come into effect from 1 July 2003, include:

  • The CASA Board will be abolished and the Director of Aviation Safety will be designated as the Chief Executive Officer.
  • The Minister will be given powers to set policy directions and performance standards for CASA, but will remain at arm’s length from day to day safety regulatory decisions.
  • The Minister will also be given powers to establish consultation mechanisms for industry and stakeholders.
  • Measures will be introduced to reform CASA’s enforcement processes, including granting a stay of suspension and cancellation decisions not involving an immediate risk to air safety, and the introduction of a demerit points system for minor breaches of the regulations.
  • An air standards advisory body will be formally established to complete the reform of the aviation safety regulations.

“The review of the structure and reporting arrangements for CASA was a key element of the aviation reform agenda that we announced in February this year,” Mr Anderson said.

“I am pleased the Government has agreed to a series of bold measures ensuring CASA remains a robust, independent safety regulator but at the same time sees its accountability to Government and standing with industry strengthened.

“Under the new enforcement regime, CASA will retain the power to ground an operator where there is an imminent risk to safety but it will be required to have its decision confirmed by the Federal Court after five days.

Where a decision is taken to vary, suspend or cancel an aviation approval and a review is sought, an automatic stay of the decision will be granted.

“This will mean that no operator will be put out of business as they wait for a court or tribunal to determine whether CASA acted appropriately. At the same time, aviation safety standards will be maintained by giving CASA the express power to immediately suspend an aviation permission, such as an Air Operators’ Certificate, where there is an imminent safety risk.

“The formal establishment of an air standards advisory body will build on the outstanding work that Mr Bruce Byron has done in making sure that the views of the industry are taken into account when new aviation safety regulations are made. This body will play an integral part in the completion of the regulatory reform program, providing a strong and effective line of communication between CASA and the aviation industry. “Australia has an enviable record when it comes to aviation safety and this is due, in part, to a culture that recognises the need for safety awareness. “These reforms will only improve and strengthen CASA’s ability to regulate our skies effectively and boost the travelling public’s faith in our aviation industry.” Mr Anderson extended his gratitude to CASA’s Chairman, Ted Anson, for completing the CASA review, and also to the other board members for the service they have given.

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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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