In common with many others, ProAviation had been a little cynical about the fate of the Aviation Safety Regulation Review (ASRR) panel’s report after it left the Review Panel’s office. Maybe we were reading too much into the way interacting government agencies managed to shrug off the most significant recommendations of the Senate References Committee enquiry into the management of the investigation into the Pel-Air ditching at Norfolk Island.
Plenty of time, we thought, but let’s not waste it. We began by collecting ASRR submissions from industry representative groups, operator, manufacturer and maintenance organisations, professional associations, training and educational organisations, private and commercial aviators, lawyer groups and individual practitioners, trade unions, aggrieved individuals, and even commercial operators of the burgeoning unmanned aerial vehicles (UAV) industry.
From a dozen of these, we selected an equal number of sample paragraphs which, we believed, represented a good cross-section of industry problems. We’d then measure the ASRR recommendations against industry’s hopes and expectations when the report finally become available.
Then on June 3, Deputy Prime Minister Warren Truss took everybody by surprise by tabling the entire 170 page ASRR report and simultaneously publishing it on his Department’s website. For good measure, he announced that “written submissions to the Review will be made public over the coming days except for those provided in confidence and a number of others about which the Government is seeking legal advice,” and inviting further public submissions deadlined for a month later.
Anybody scanning through the 169 submissions to the ASRR Panel is likely to observe frequently recurring threads and themes, most of which the panel has also identified.
The first of these is that the mutual trust and respect that normally form the cornerstones of viable industry regulation have all but disappeared. “Been trashed” is their commonest way of expressing this.
The second is the events that have already laid waste to countless jobs and businesses, leaving in their wake the bleakest imaginable investment landscape for any aviation business seeking to recover or grow in the current regulatory environment. The concerns and grievances range through every area of industry/regulator interface and include the regulatory review program’s one-way consultation processes, regulator micromanagement and its related costs to business, a legal office that seems obsessed with treating aircraft operators, pilots and maintainers as though they were dealing with bikie gangs, the charging regime for mandated regulatory services, and the endless paperwork delays in processing applications for the permissions, approvals and certifications they are required to obtain to go about their businesses.
And the third is that the damage has already been so sustained and savage in so many industry facets as to be unrepairable without immediate acknowledgement through resolute remedial action. A dominant theme among the submissions is the premise that only a root and branch reorganisation can achieve what is essential for recovery.
A feature of the ASRR process is the depth and diversity of most of the submissions, and in particular the range of solutions that have been put forward.
ProAviation has reviewed a large proportion of contributions to the review, and has also spoken with numerous industry figures about what outcomes they hope for to reverse the collapse of mutual trust.
The following selected comments, each one from widely differing individuals and organisations, are characteristic of what industry observers are saying about those problems. The numbered paragraphs are the dozen individual issues raised in the various submissions, and relevant comment from the Review is in blue typeface:
1. “The [CASA ] legal department can only cause the troubles they do if they’re allowed to by the senior management and the board. So if your outlook on the world is a legalistic view where you invert the 80/20 rule and say that only 20% of people are trying to do the right thing so we must prosecute the crap out of everyone else – if you’ve got that fundamentally stupid blinkered approach in management; forget about whether it’s aviation or not, you will then never build an organisation that has the trust of industry. That’s a headline that CASA hates and yet it’s backed up by every independent assessment of CASA; they are a low-trust organisation driven by legal priorities, not by safety outcomes.”
ASRR: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. The selection of a new Director of Aviation Safety should concentrate on finding an individual with leadership and change management abilities, rather than primarily aviation expertise. Other jurisdictions have appointed leaders without an aviation background, who have been successful in changing the strategic direction of the safety regulator.
2. “The first and vital conclusion the review must draw is that CASA has lost the trust of the industry – all else follows from that, starting with the obvious immediate requirement to restore trust. If that conclusion is not drawn, then nothing the review can recommend, nor the government mandate, will make the slightest bit of difference to the current situation and further decay is inevitable.”
ASRR:In the Panel’s view, CASA is falling short of the standards it ought to attain, judged by the ANAO’s [Australian National Audit Office] six principles. Based on industry’s perception, CASA falls short on Transparency and Openness, being seen by industry as closed to engagement. CASA’s Leadership also appears wanting, with a failure to translate good procedures and policies on paper into effective behaviours across the organisation. 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 CASA’s Accountability as being compromised.
3. “Where the system can break down is when there is friction between the relevant surveillance officers of CASA and the operator and/or its chief pilot, with the result that trust is eroded and the communication and feed back necessary for both parties is diminished.”
ASRR: All regulators face the challenge of keeping up-to-date with technology, and must acknowledge that industry holds higher levels of expertise, especially for new generation aircraft like the A380 and B787. Some regulators, such as the UK CAA, advised the Panel that a collaborative working relationship with industry assists in keeping them across the latest technology and developments.
The Panel also examined options used in other countries for Airworthiness Inspectors (AWIs) and FOIs to maintain currency in their areas of expertise. The Panel considers there would be merit in CASA and industry jointly developing a model for an industry exchange program. This program would allow CASA to access expertise, and it could be used to facilitate the finalisation of CASA’s Regulatory Reform Program, as discussed in Chapter 5.
The Panel discussed this proposal with the Chief Pilots of Australia’s major airlines and other industry representatives, who were supportive of the proposal in principle.
An industry exchange program needs appropriate probity frameworks, to ensure that secondees to CASA are not in positions that could influence decisions related to their employer, or could allow access to confidential information relating to their employer’s competitors.
The Panel recommends that:
9 The Civil Aviation Safety Authority develops a staff exchange program with industry.
4. “I have observed a change in the policy of the role of the regulator from one which directed its experienced officers to communicate directly with members of the GA (general aviation) industry on operational and regulatory matters to provide advice ‘one-on-one’ to enhance the members’ knowledge and understanding of the rules and operational/maintenance issues which may affect air safety, and to foster good relations with the industry so as to encourage valuable feed-back; to the regulator of today, which appears to be focussed on an inflexible policy of strict compliance and penalties. This has had the regrettable result that many members of GA have expressed a reluctance to talk to CASA out of fear.
The Panel recommends that:
21 The Civil Aviation Safety Authority changes its organisational structure to a client-oriented output model.
22 The Civil Aviation Safety Authority establishes small offices at specific industry centres to improve monitoring, service quality, communications and collaborative relationship
5. “The changes now incorporate a new ‘Area Approval’ process through CASA for ‘each and every individual flight operation’. [For regulated UAV operations] The new process incurs the same processing fee of $160 per hour and an estimate is provided by CASA after initial application. Both CASA & Airservices state they cannot process an application for these new ‘Area Approvals’ inside of 21 days minimum. Most applications however are running into several months and hundreds of dollars.”
ASRR: Industry complained to the Panel about the timeliness and quality of CASA services, particularly when issuing approvals. Delays can affect the livelihoods of individuals and the viability of businesses. Delays of months or even years were reported in some instances, particularly relating to licence and Air Operator’s Certificate (AOC) approvals.
The Panel recommends that:
8 The Civil Aviation Safety Authority:
a. reinstates publication of Key Performance Indicators for service delivery functions;
b. conducts a stakeholder survey every two years to measure the health of its relationship with industry;
c. accepts regulatory authority applications online unless there is a valid technical reason against it ;
d. adopts the same Code of Conduct and Values that apply to the Australian Public Service under the Public Service Act 1999;.
6. “There can be little doubt that the decline of Australian aviation as a world class aviation nation over the past decade has reached nadir within the past five years. The endless, costly determination to be seen as ‘technically’ compliant with ICAO whist arrogantly remaining outside of the ‘real’ spirit and intent of ICAO compliance underpins a significant portion of the issues with which the review panel must come to terms.”
ASRR: Although opinions differ. the Panel estimates that the RRP would take at least another five years to complete. Furthermore, the final product of regulatory reform would not meet the aviation community’s needs and would not be consistent with the ICAO principles for plain language, easily understood, safety rules. Nor would the final regulations be harmonised with those of any foreign jurisdiction. The 25-plus year history of regulatory reform has been consuming the industry, and distracting the aviation community from the objective of managing safety in its operations. On this basis, the Panel concludes that continuing along the current path would not be in the interests of aviation safety in Australia and that a new approach must be developed for regulatory reform.
NOTE: The above has been slightly re-worded in consultation with the ASRR so the grammar won’t be misinterpreted in a way that suggests retaining the status quo was still an option.
7. “Australia’s aviation industry, like all other industries in Australia, is seen as ‘overregulated’ and stifled by red tape. Regulatory development over the last couple of decades has not adopted the principles contained in the government’s Best Practice Regulation Handbook and now part of Government policy – regulatory reduction and reduction in red tape. This reform has failed on both accounts.”
ProAviation Comment: See the response to point 5 above. Regarding the remaining five points, each referes in its own way to various apparent aberrations in policy and practice. we believe the following extracts from the report reflct discussion and recommendations that are relevant to necessary changes in the areas of leadership, governance, attitudes and praacctices including closer government and board involvement:
* A simple Statement of Expectations might be adequate where the agency is operating effectively. In the current situation, more in-depth guidance is required, similar to the 2003 Charter Letter. The Panel considers the new Board should have a clear and unambiguous mandate from government.
* While a number of skills are required amongst CASA’s senior management, they do not all need to be held by one person. The DAS should have a supportive and complementary team of deputies and senior executives. The DAS should have an understanding of aviation, but does not need to be an operational expert. If CASA is structured and staffed appropriately, it should have sufficient subject matter expertise within the organisation, or be able to obtain that expertise from industry
* A change in philosophy at CASA will be critical to make the recommendations in this report effective. A philosophical change requires a cultural change and this must be driven by the DAS.
8. “Aviation should be encouraged by CASA as part of its formal charter. Having its charter limited to ‘Aviation Safety’ encourages negativism, which is widely seen in practice. There is no settled standard for ‘air safety’. This leaves CASA with a poorly identified obligation, a completely subjective mantra, and no obligation to act for the benefit of Australian aviation this is unsatisfactory on its face and should change. Perhaps the roles of regulation and administration should be separated, and the regulator given the dual roles of promotion of aviation as well as safety?”
The Panel recommends that:
6. The Civil Aviation Safety Authority’s Board exercises full governance control. The non-executive directors should possess a range of appropriate skills and backgrounds in aviation, safety, management, risk, regulation, governance and government.
9. “Our members are often negatively impacted by their dealings with CASA. Reasonable requests that should receive immediate and fair attention/approval fall into regulatory “black holes” where either no-one at CASA can provide an answer or where the applications just go missing altogether. The impression we get is one of a regulator where the majority of officers are extraordinarily afraid of making a decision lest they be wrong and their heads end up on the chopping block. As senior inspectors have retired, we have also noticed a distinct drop in the level and breadth of experience amongst CASA’s FOIs, leading to a complete unfamiliarity with our operating requirements. There are also several cases where these officers have approached their roles with a pre-existing bias which interferes with their obligation to give our members fair and timely consideration on their individual applications.”
ASRR: 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. The selection of a new Director of Aviation Safety should concentrate on finding an individual with leadership and change management abilities, rather than primarily aviation expertise. Other jurisdictions have appointed leaders without an aviation background, who have been successful in changing the strategic direction of the safety regulator.
10. “Guidance material on CASA’s enforcement policy which guides CASA decision makers should be legally binding and itself enforceable under an Ombudsman-type arrangement akin to the Aircraft Noise Ombudsman.”
ASRR: The message that CASA presents to industry is not always consistent with the message in its manuals. The DAS outlined CASA’s regulatory philosophy in a presentation to a Senate Estimates Committee in 2009:
Similar announcements of CASA’s firm regulatory philosophy have been made in other presentations to the industry, and appear to be evident in the trends in CASA enforcement action. 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. Combined with concerns in other parts of the safety oversight program as described later in this chapter, the result is an industry that has retreated from open dialogue and participation.
11. “In the matter of [a flight training organisation], the applicant paid to CASA an ‘up front’ fee of $8,000 ………to assess its application for the issue of an Air Operator’s Certificate. The assessment by CASA of the key personnel and other aspects of the AOC application was mandatory by legislation. A serious problem existed in this case in that although CASA demanded and was paid the fee for the assessment, the officers of CASA had already determined that the application for the AOC would be refused on the alleged grounds that its CEO and proposed chief pilot/CFI was not a fit and proper person to hold the chief pilot/CFI position. Despite CASA having determined that the applicant’s application for an AOC would be refused, CASA refused to stop its assessment, retained the $8,000 and demanded that the applicant pay another $1,600.”
These allegations are unsurprising to anybody who is familiar with the complaints of random aberrant behaviour and the absence of effective avenues for its timely redress. In fact our own submission details how an operator (now our publisher) paid $20,000 in advance as an initial application fee for a low capacity regular public transport AOC. Later examining the CASA deliberations he came into possession of a string of in-house CASA emails that blatantly discussed various “tactical” options for delaying the progress of the application including flat refusal, deliberate delays in exchanging correspondence, or barraging him with requests for further information.
The review committee does not directly address these and other apparent abuses of power. However, throughout its report its comments and recommendations related to management and governance which if implemented could be expected to put such events behind us. Among those comments and measures are:
ASRR: Several concerns were raised regarding the timeliness and effectiveness of the ICC [Industry Complaints Commissioner], Including ‘the current system of the ICC reporting direct to the CASA CEO is seen by industry is largely ineffective and, again, discourages some industry complaints due to fear of retribution, and it is essential that there is a reliable, robust and transparent Complaints process that is managed in a timely manner.’
The panel recommends that:
37: The Civil Aviation Safety Authority amends the current Terms of Reference of the Industry Complaints Commissioner so that:
a. the ICC reports directly to the CASA Board
b. no CASA staff are excluded from the ICC’s jurisdiction
c. the ICC will receive complaints that relate to both the merits and the process of matters
d. on merits matters, including aviation medical matters, the ICC is empowered to convene an appropriately constituted review panel, chaired by a CASA non-executive director, to review the decision
e. while all ICC findings are non-binding recommendations, the original decision-maker is required to give reasons to the CASA Board if a recommendation is not followed.
Commendably, item (b) removes a controversial restriction which immunised various senior officials from complaints to the Industry Complaints Commissioner.
12. “When industry first heard of the shift of CASA to being a ‘Big R’ regulator, industry accepted that clearly that was the right of the regulator and, industry assumed, was being done with the support of the CASA Board and the Minister. What industry did not anticipate was that the move to a ‘Big R’ regulator was code for the introduction of a bullying and intimidatory culture that would lead to a breakdown in relationships between CASA and industry, a significant reduction in the focus on innovative safety programs and increasingly shrill policing activities that are not delivering real safety improvements.”
ASRR: A hard-line regulator creates an environment in which regulated entities, be they air operators, maintenance providers, airports, or even air navigation service providers, may withhold information. Industry consultation has highlighted that many in the Australian aviation industry now actively avoid engagement with CASA unless absolutely necessary.
And in case that hasn’t sunk in, elsewhere in the report:
ASRR: The Panel is concerned by the dichotomy between industry’s and CASA’s perceptions of their relationship. While CASA is clearly aware of specific instances of industry dissatisfaction, it does not appear to fully comprehend the level or breadth of ill-feeling across all industry sectors. This lack of comprehension is especially apparent at the senior leadership level, including within the CASA Board.
The Panel considers CASA should take steps to better understand the issues of concern to industry and enhance the level of dialogue, both through a more productive two-way relationship, and also through initiating regular, anonymous stakeholder surveys to gauge industry’s perceptions.
Considering its timeframes and its task, the ASRR panel has performed a remarkable service to the industry and presented it in an erudite way. While it may appear at first glance to have overlooked or glossed over some specific issues, it has produced a set of findings and recommendations which, if all were heeded and implemented, would resolve those issues in any case, by re-directing or replacing people as necessary and replacing the structures, philosophies and attitudes that bred the issues.
The ASRR report should be mandatory reading for everybody in industry including those regulatory employees who hope still to be regulatory employees in six months; and also for the incoming CEO and Board.
The remaining challenge for the Minister will be to protect the ASRR recommendations from the watering down that was inflicted on the Pel-Air/ATSB/CASA investigation.
There are still people who need to understand that even you if know you’re right and you know everybody else is wrong, you still have a problem.
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