The failure of CASA’s regulatory review program (RRP) to deliver on expectations has many contributory factors, and an understanding of its sad history is going to be essential if the program is to be prevented from evolving from a stalled project into a high-cost self-perpetuating industry.
Failure? Yes, failure. You only have to compare all the promotional material, statements of expectations, ministerial and CEO directions, guidelines and debate that came with the RRP’s inception.
To refresh the reader’s memory the expectations variously included:
- outcome-based rather than prescriptive regulation, which is the basis of aviation regulation in all other aviation-significant democracies;
- alignment with overseas regulatory structures so that Australia could achieve true bilateral agreements with the leading overseas aviation authorities;
- ‘plain English’ rules that are easy to understand, administer and enforce;
- the elimination of wasteful and un-necessary administration, including evaluations of cost benefit and safety relevance of proposed regulations;
- compliance in rulemaking with Australian law, government guidelines; international (ICAO) standards; and
- two-tier regulation to replace the existing multi-layer regulation comprising the Civil Aviation Act, Regulations and Orders, policy documents, individual rulings and permissions, exemptions and other instruments.
In its background discussion on the regulatory reform program (RRP) the ASRR Panel estimated that “it will take at least another five years to complete.” That timeframe of course, would depend on when the reform process actually starts. But even then, the ASRR warns that as of right now we cannot expect the program’s founding goals to be attained:
“The final product of regulatory reform will not meet the aviation community’s needs and will not be consistent with the ICAO principles for plain language, easily understood, safety rules. Nor will 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 is not in the interests of aviation safety in Australia and that a new approach must be developed for regulatory reform.”
One of the first cracks to appear in the program’s structure was, and still is, the perception among our regulators that neither the Australian aviation industry nor CASA was sufficiently “mature” to operate under the concept of “outcome-based” regulation. Just when the imperative of modernised rule-making is taking hold in other aviation-prominent nations and in our own Productivity Commission’s red tape reduction program, Australia is setting new records with word and page counts set to challenge the Bible (807,361 according to Google), and creating untold hundreds of new strict liability offences.
Whatever “maturity” is supposed to mean in that context, and whatever the specialist professional qualifications claimed by those espousing it may be, the creed has long been used to support the opinion that we unsophisticated colonials could only fly safely under a detailed prescriptive “criminal law” regulatory environment – probably similar to what prevailed among the first settlers but fortunately minus the floggings.
Players in the consultative committee game report the “immaturity” view as having been frequently expressed by various officials including the CASA lawyers who were or still are involved with the RRP.
Of course it’s utter rot, and reveals apparent ignorance of the historical fact that aviation as we know it began evolving all over the world in the first two decades of the 20th century, with ongoing interaction and alignment between most States, and is therefore equally “mature” as arre all but the most dysfunctional of emerging nations.
The first serious attempt to shape the intended progress of CASA’s program from concept to completion was set out in (then) CEO Bruce Byron’s Directives 16 and 17 in November 2004.
#16 set out the guiding principles for the program, while #17 specified the structure of the regulatory advisory panels which would be part of the consultation process.
Throughout this article, CASA material is all in black typeface, and ProAviation commentary is in blue.
Directive 16/2004 Development of Regulations and the Regulatory Framework
DATE: 24 November 2004
TO: Bruce Gemmell
SUBJECT: Development of Regulations and the Regulatory Framework TIMING: Immediate Effect
Directive: This Directive is issued to establish guiding principles for the development of the regulatory framework and to provide clear guidance for the development of proposed aviation safety regulations.
- Aviation safety regulations are to be developed on the basis of addressing known or likely safety risks. Each proposed regulation is to be assessed against the contribution it will make to aviation safety.
- Wherever possible, the CASRs are to be drafted to specify the safety outcome required, unless, in the interests of safety, and to address known or likely aviation safety risks, detailed requirements need to be presented.
- Wherever possible, aviation safety regulations are to be developed within a two tier regulatory framework comprising the Civil Aviation Act and the Civil Aviation Safety Regulations (CASRs), supported by advisory material that details acceptable means of compliance with the CASRs, together with appropriate guidance material.
- Manuals of Standards (MOSs) are to be developed only where there is a clear requirement, on the basis of safety, to mandate standards that for the purpose of clarity should not be contained in the Regulations.
- The content of proposed MOSs must also be assessed against the contribution made to aviation safety.
- A MOS must only contain such standards as are clearly authorised by a particular regulation and must not be used as a vehicle for promulgating advisory material and other information.
All proposed CASA Parts and MOSs are to be assessed against the guiding principles stated above.
Bruce Byron AM Chief Executive Officer
Directive 17/2004 Regulatory Advisory Panels
DATE: 24 November 2004
TO: Bruce Gemmell
SUBJECT: Regulatory Advisory Panels
TIMING: Immediate effect
Commencing immediately, Regulatory Advisory Panels are to be established in relation to each CASR Part under development. The work of the Panels is to be separate from and additional to the existing consultative arrangements through the Standards Consultative Committee.
The Regulatory Advisory Panels are to provide advice to the CEO on the proposed content of each CASR Part and, where applicable, the associated MOS, prior to publication of a Discussion Paper, Notice of Proposed Rule Making or submission to the Minister, in relation to that Part.
The Advisory Panels will be constituted as follows:
- Chair of the Standards Consultative Committee
- Project Manager for the relevant Part.
- Manager from the relevant Standards branch (nominated by EM Standards)
- Member of the SCC (Nominated by the SCC)
- Member of the ASF (Nominated by the ASF)
- Inspector / Manager from the relevant area of Compliance (Nominated by EM Compliance)
- Independent member of the aviation industry (nominated by the CEO)
- Member of the Office of Legal Counsel (nominated by General Counsel)
- Representative of the Department of Transport and Regional Services
- Adviser from the Office of the CEO (Nominated by the CEO)
Bruce Byron AM Chief Executive Officer
Mr Byron subsequently repealed the two Directives above, and replaced them with Directive 01/2007, which consolidated and integrated the other two and is reproduced in the left hand column of the table below. Subsequently 01/2007 ceased to be available from the CASA website, and when we asked about its fate, we were told that it had been removed because its contents had been incorporated in “CASA policy.” Asked for directions to the new policy document, CASA was unable to assist.
However, 01/2007 has more recently been restored on the web site but then replaced by Mr Skidmore’s Directive 01/2015 which is reproduced along with our commentary in the right-hand column of the table below.
The table provides a comparison of the two most recent documents, i.e. Mr Byron’s Directive 1/2007, and Mr Skidmore’s Directive 1/2015. It is quite obvious that the later (Skidmore) Directive is a modified version of the previous (Byron) Directive. In several places the exact wording is duplicated, while in others it is only slightly modified, but towards the end of the table where Directive 1/2007 ends, the text of 01/2015 wanders away from the project’s terms of reference and clouds what are relatively key reform issues, by constantly re-focusing on S.9A (2) of the Act.
CEO DIRECTIVE – 01/2007
From CEO Bruce Byron to (then) Deputy CEO Shane Carmody, May 18 2007
DAS DIRECTIVE 01/2015
Directive from Director Mark Skidmore, May 29, 2015
|This Directive replaces CEO Directive 016/2004, which is hereby repealed. It updates CASA’s Guiding Principles for the development of the regulatory framework and proposed aviation safety regulations||This Directive reaffirms CASA’s commitment to ensure that regulatory changes are justified on the basis of safety risk and do not impose unnecessary costs or unnecessarily hinder participation in aviation and its capacity for growth.|
|The aviation safety regulations must take into account CASA’s Classification of Civil Aviation Activities policy and the priority given under the policy to passenger-carrying activities||It also extends the principles underlying this commitment to the application and administration of the regulations by CASA, to the fullest practicable extent consistent with the interests of safety.|
Comment: This appears to be a major change, as it seems CASA still bows to the imperative of S.9A (2) of the Act as defined by John McCormick, who cancelled the “Classification of Operations” process after all the years of work on that controversial concept, on the basis of his interpretation of S.9A (2). Mr Skidmore’s version has not changed direction at all on this aspect..
|Aviation safety regulations must be shown to be necessary. They are to be developed on the basis of addressing known or likely safety risks that cannot be addressed adequately by non-regulatory means.||Aviation safety regulations must be shown to be necessary. They are to be developed with a view to addressing known or likely safety risks that cannot be addressed effectively by non-regulatory means alone|
Comment: Neither of the above appears to go far enough. Any transparent process that delivers valid cost/benefit analysis must by definition contain a transparent cost/benefit justification and if the likely cost of regulation exceeds the cost of reduced risk, the regulations should not be implemented.
|Each proposed regulation must be assessed against the contribution it will make to aviation safety.||Consistent with CASA’s obligations under the Civil Aviation Act and other Commonwealth laws and Government policies, every proposed regulation must be assessed against the contribution it will make to aviation safety, having particular regard to the safety of passengers and other persons affected or likely to be affected by the activity involved.|
Comment: Here’s S.9A (2) again — again with no cost/benefit justification.
|If a regulation can be justified on safety risk grounds, it must be made in a form that provides for the most efficient allocation of industry and CASA resources..||If a regulation can be justified on safety -risk grounds, it must be made in a form that provides for the most efficient allocation of industry and CASA resources.|
Identical wording in both Directives. However there is no evidence in any of the published legislation thus far, that the vital cost/benefit justification process has been observed and documented.
|The regulations must not impose unnecessary costs or unnecessarily hinder high levels of participation in aviation and its capacity for growth||Regulations must not impose unnecessary costs or unnecessarily hinder levels of participation in aviation and its capacity for growth.|
Comment: Chop logic* in both cases. Once you have decided that regulation is necessary, the compliance costs of the regulation, by definition, become “necessary” costs
*Chop logic: (of an argument): “Characterised by equivocation or by overly complex or specious argumentation, improperly reasoned.”
|Where appropriate, the aviation safety regulations are to be aligned with the standards and practices of leading aviation countries, unless differences are required to address the Australian aviation environment and these differences can be justified on safety risk grounds.||Aviation safety regulations should be aligned with the standards and practices of the International Civil Aviation Organization and leading aviation countries, unless differences are necessary to address particular features peculiar to the Australian aviation environment and those differences can be justified on safety-risk grounds.|
Comment: Again, see previous comments re. cost/benefit. Reasons for the addition of the words “features peculiar to” the Australian aviation environment may be worthy of some research .
|Recognising that international standards and practices vary, CASA will align its regulations with those that effectively address identified safety risks in the most cost-effective manner.Comment: If this were taken literally, it would be necessary to drop all the “EASA-like” nonsense and Part 61, just for a start.|
|Where appropriate, the aviation safety regulations are to be aligned with the standards and practices of leading aviation countries, unless differences are required to address the Australian aviation environment and these differences can be justified on safety risk grounds.||Where it is appropriate to do so, aviation safety regulations are to be drafted to specify intended safety outcomes. Where known or likely safety risks cannot be addressed effectively utilising an outcome-based approach (in whole or in part), more prescriptive requirements will be specified.Comment: This appears to be a justification for “no change”, because outcome based regulation would require a whole new way of thinking. There is no evidence in the documentation thus far that CASA as a whole, or most of the CASA people, even have a basic understanding of what performance (outcome) based regulation means.|
|In developing aviation safety regulations, CASA must consult appropriately with industry in an open and transparent manner ensuring that all communication is clear, timely and effective.|
|The aviation safety regulations must be drafted to be as clear and concise as possible.||Subject to the applicable drafting requirements, CASA will strive to ensure aviation safety regulations are drafted as clearly and concisely as possible.Comment: Another cop-out to justify CASA’s “preferred drafting style.” Strict liability when it should not be imposed, and maximum allowable penalty points, to maximise the administrative fine penalties. CASA should be required to provide a reference to the “applicable drafting requirements.”Also the reference to “applicable drafting requirements fails to cite a documentary reference which details the “requirements.”|
|Wherever possible, the aviation safety regulations are to be developed within a two tier regulatory framework comprising the Civil Aviation Act and the Civil Aviation Safety Regulations (CASRs), supported by advisory material that details acceptable means of compliance with the CASRs, together with appropriate guidance material.||Where practicable, aviation safety regulations should be developed within a three -tier framework, comprising the Civil Aviation Act, the Civil Aviation Safety Regulations and Manuals of Standards.Comment: Which is where we are now, and what a mess it is! What “the industry” has been calling for is in reality a fourth tier, to “explain” the first three!!!!!|
|Manuals of Standards (MOSs) are to be developed only where there is a clear requirement, on the basis of safety, to specify standards that for the purpose of clarity and effective administration should not be contained in the regulations.The content of proposed MOSs must also be assessed against the contribution it makes to aviation safety.A MOS must only contain such standards as are clearly authorised by a particular regulation and must not be used as a vehicle for promulgating advisory material and other information. (our emphasis)||Supportive advisory and guidance materials, including other acceptable means of compliance with regulatory requirements, will be promulgated and disseminated in conjunction with new and amended regulations, having regard to the time when compliance with new or amended regulations will be required.Comment: This illustrates the confused thinking as to what an acceptable means of compliance is – if acceptable means of compliance are not already in the MOS. If the content of the MOS doesn’t represent acceptable means of compliance, there appears to be no reason for having a MOS|
Byron Directive 1/2007 ends at this point. The following comments represent the remainder of Directive 1/2015 and our comments on these additions, which appear to emanate from CASA’s legal services office.
In accordance with the Civil Aviation Act, the safety of air navigation as [sic] the most important consideration for CASA in performing its functions and exercising its powers.
Comment: This is the same recurring theme which promotes the concept that S.9A (2) overrides everything else.
Consistent with that obligation, the principle of legality and the explicit requirements of the civil aviation legislation in any particular case, CASA must always have regard to all relevant considerations when exercising discretionary powers, including the cost and other burdens involved in the application of regulatory requirements.
Comment: It in unclear what this means, but it appears to put forward that CASA should use what it thinks is the cheapest means of enforcement. This interpretation is consistent with CASA’s track record of bypassing due process wherever possible, preferring the well-worn path of making a subjective opinion-based decision that an individual is not a “fit and proper person” and grounding the person or company simply by suspending or cancelling the “approvals” upon which they rely to continue operating.
This cannot and does not mean that CASA must demonstrate that, in exercising its discretionary powers under the regulations in any given case, it has adopted or will adopt a course of action involving the lowest cost to, or least adverse impact on, the person or persons affected by that action.
Comment: Why should it not mean exactly that? The continuing absence of transparency and accountability in compliance/enforcement procedures must be high among the list of reasons for what the ASRR observes to be a breakdown of trust between industry and regulator.
What it does mean is that, where a person who is or will be affected by CASA’s exercise of discretionary powers under the regulations convincingly demonstrate, on evidence, that:
- the same safety outcome contemplated by the applicable regulatory requirement can be achieved on another, more cost-effective and/or otherwise less onerous basis;
- the person is able and willing to adopt and give meaningful effect to that alternative approach to compliance;
- the alternative approach proposed can be implemented fully and effectively in a timely fashion, having regard to the interests of safety;
- the adoption and implementation of such an alternative approach by CASA would not involve unreasonable additional oversight or administrative responsibilities on CASA’s part; and;
- no other persons would be adversely or unfairly affected by the adoption of that alternative approach,
CASA will entertain a reasonable proposal for the adoption of another approach and, in the absence of good reason not to do so, CASA will adopt such an alternative approach.
Comment: In ProAviation’s view, this is a conceptual mess, which when simplified, appears to be promoting the view that CASA can do whatever it likes. In numerous well-documented compliance/enforcement events, there is evidence which at least warrants an independent assessment; preferably by the Australian Law Reform Commission and the Productivity Commission that many of CASA’s regulatory adventures tend to display more than one of the following features:
- An alleged infringement is identified. This may or may not be based on valid observations and assessments; or it may take the form of an incorrect assessment by a CASA official, assertions by a disgruntled former employee, a commercial competitor or a dissatisfied customer. (Naturally we acknowledge that there are instances where an actual infringement does exist.)
- On the basis of the allegations, often untested to any evidentiary standard, it appears the primary impetus becomes focused on freezing the certificate holder’s ability to continue earning revenue as an operator or wages as an employee. There are examples were adverse certificate action has been based on claimed “reason to believe” and initiated without written advice,
- Having cancelled or suspended the certificate, the regulator then uses “reason to believe” to support ongoing regulatory activity including exhaustive searches of records, apparently engineered delays, postponements of proceedings and/or failure to meet obligatory commitments to provide documents within specified time-frames. AAT appeals often prove pointless because the process has already caused irrevocable harm.
- An operator’s client base becomes aware that the certificate holder is under investigation for alleged breaches. This information commonly becomes widely circulated and the suspension/cancellation causes the cancellation or suspension of existing contracts with irreparable damage to the business. If the operator has government contracts (which many of them do) the news appears to travel even faster,
The commonest outcome of these sequences of events is the closure of the business with major disruption and distress to all employees or the departure from aviation by an individual by means which appear to avoid legal due process. The advantages of this conduct are reduced legal costs to CASA.
An analysis submitted to the ASRR by prominent Sydney lawyer, aircraft owner and pilot Spencer Ferrier, contains several positive observations and recommendations that appear to be consistent with the restoration of industry/regulator trust.
Furthermore click on ProAviation’s ASRR submission which analyses numerous well-documented case studies, each of which raises serious questions about the probity and ethics of CASA conduct in and around these events.
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