Tag Archives: Regulatory reform

Agricultural operators welcome government’s ASRR response

The Aerial Agricultural Association of Australia, one of the most energetic critics of the regulator’s recent performance, has warmly welcomed Government’s response to the Forsyth Aviation Regulation Review and the Deputy Prime Minister’s appointment of an additional three experienced aviation people to the CASA Board.

AAAA CEO, Phil Hurst, said that the appointments to the CASA Board were “a critical first step to reform of a dysfunctional CASA.” Continue reading

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  • The Aerial Agricultural Association of Australia (AAAA) has welcomed the report of the Aviation Safety Regulatory Review (ASRR) as “a useful step forward in fixing Australia’s aviation safety system," but says industry focus has swiftly moved onto urgent Government action to address the problems. “Industry feels vindicated in its criticism…
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  • At least eight peak aviation industry bodies are now presenting a united front in demanding government action over the ever-worsening interface between industry and regulator. In meetings in Sydney on November 13, the Australian Aviation Associations Forum (TAAAF) developed a multi-faceted critique headed, “Now is the time for Government to…
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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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A health-giving dose of reality – Opinion

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:

ASRR:

*     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?”

ASRR:

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.”

ProAviation comment:

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.

ProAviation comment

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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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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Agricultural operators dump on the regulator

The Aerial Agricultural Association of Australia (AAAA) has added its voice to the torrent of industry grievance against the aviation regulator.

AAAA’s blistering submission to the Aviation Safety Regulation Review (ASRR) Panel is all the more notable because the Association had always cultivated a track record of positive engagement with the multiple government agencies it deals with; and until now had shunned negative public comment on CASA’s performance. Continue reading

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