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Australia – Cleared For Landing: Completion Of The Aviation Safety Regulations Review.

26 June, 2014

 

Legal News & Analysis – Asia Pacific – Australia – Shipping, Maritime & Aviation

 

What You Need To Know

 

  • In late 2013, the Federal Government commissioned a review into Australia’s aviation safety regulation system. This review has been completed and a report released. In this report, 37 recommendations are made for the Federal Government’s consideration.
  • Among these 37 recommendations is that the Civil Aviation Safety Authority be reformed. This follows widespread concerns within the aviation industry that the approach adopted by the Civil Aviation Safety Authority has resulted in many in the aviation industry actively avoiding engaging with the Civil Aviation Safety Authority.
  • Due to the scale and complexity of the current aviation safety regulations (which is exacerbated by ongoing regulatory reform), another of the recommendations is that aviation safety regulation should be moved to a three-tiered approach that comprises an act, regulations and standards.

 
What You Need To Do

 

  • Aviation industry stakeholders should review the report and its recommendations and provide any relevant submissions to the Department of Infrastructure and Regional Development by 30 June 2014.

 
In November 2013, the Federal Government commissioned a review of Australia’s aviation safety regulation system (Review). The Review was undertaken by an independent panel comprising of aviation experts who brought together a range of experience across technical, operational, management and regulatory roles in both the public and private sector (Panel). The Panel has now completed its Review, and on 3 June 2014 released a report (Report) which sets out its findings and makes 37 recommendations for the Federal Government to consider. Both the Report (here) and the executive summary and recommendations (here) are available from the Department of Infrastructure and Regional Development’s website.

 
What Is The Purpose Of The Review?

 
In announcing the Review, the Deputy Prime Minister and Minister for Infrastructure and Regional Development, the Honourable Warren Truss MP, stated that:

 
“the Review will examine how well our regulatory system is positioned to ensure we remain at the forefront of aviation safety globally.”

 
The Review also supports the Federal Government’s current policy approach of attempting to reduce regulatory burden on businesses, with the Federal Government eager to identify any opportunities to improve safety outcomes, whilst reducing regulatory burden and the costs imposed on businesses.

 
What Are The Panel’s Findings?

 
The Recommendations

 
At a high-level, the Panel considered the structure of Australia’s aviation safety regulatory system to be “sound”. Despite identifying a number of issues with the current operation of the system, the Panel does not consider that significant structural change is required.

 
Whilst it is beyond the scope of this alert to consider each of the 37 recommendations made in the Report, key recommendations made include:

 

  • that the Civil Aviation Safety Authority (CASAdelegates responsibility for the day-to-day operational management of airspace to Airservices Australia;
  • that CASA changes its regulatory philosophy and builds an effective collaborative relationship with industry;
  • for CASA to reassess the penalties in the Civil Aviation Safety Regulations 1998 (Cth) (CASR);
  • that CASA reintroduces a ‘use of discretion’ procedure that gives operators or individuals the opportunity to discuss and remedy (if necessary) perceived breaches prior to CASA taking formal action (except where CASA identifies a serious and imminent risk to air safety); and
  • for CASA to change the structure of the current regulatory framework to a three-tier structure (an act, regulations and standards).

 
Whilst it is difficult to predict which (if any) of the Panel’s 37 recommendations will be followed, the CASR’s complex legislative arrangements may well be reviewed given the Federal Government’s clearly stated objective of reducing regulatory burden.

 
Civil Aviation Safety Authority

 
In its Report, the Panel raised concerns about CASA’s relationship with the aviation industry following the significant amount of critical feedback received in the course of undertaking the Review.

 
The Panel found that in recent years, CASA has adopted a “hard line” and “heavy-handed” approach which has led to the possibility of regulated entities withholding information from CASA. Specifically, industry consultation highlighted that many in the industry actively seek to avoid engaging with CASA unless absolutely necessary. Accordingly, the Panel concluded that CASA is falling short of the standards it ought to attain, thereby compromising CASA’s stewardship of the aviation industry.

 
The results of this consultation have led the Panel to recommend that CASA change its strategic direction to develop a collaborative relationship between  regulators and industry which would allow for open sharing of safety data. The Panel considered that in order to achieve this, the CASA Board is required to exercise full governance control of the organisation. Accordingly, a change in governance would be required, including a new Director of Aviation Safety and two additional directors.

 
Australian Transport Safety Bureau

 
In respect of the Australian Transport Safety Bureau (ATSB), the Panel recommended that the ATSB investigate as many fatal recreational aviation accidents as resources allow. Currently there are minimal investigations into these types of accidents due to resource limitations.

 
The Report noted that Canada’s Transportation Safety Board is also completing a review of the ATSB which is expected to be finalised in 2014. This is partly due to the heavy criticism of the ATSB’s report into the 2009 ditching of a Pel-Air Westwind off Norfolk Island.

 
Regulatory Reform

 
Regulatory reform in the aviation space has been near constant. In the 2012-2013 year, the aviation industry was subject to 92 active regulatory change proposals in addition to 23 proposals being completed. Similarly, the Regulatory Reform Program has been underway for over 20 years and has had several changes in direction. Although the Panel’s view is that the changes proposed were justified, they highlight the extent to which the industry is subject to constant regulatory change. This has contributed to industry wide “reform fatigue”.

 
Considering the above, the Panel recommends that a more manageable and regular process of periodic regulatory maintenance should be adopted and regulations only changed when required.

 
Further, the Panel comments in the Report that industry is frustrated with many new civil aviation safety regulations which they consider are legalistic, difficult to understand and focused on punitive outcomes. The Report recommends a move from the current two-tiered approach of using an act and regulations to a three-tiered approach comprising an act, regulations and standards. Unsurprisingly, the Panel also recommends that the third tier (ie the standards) be drafted in plain English and that the regulations be drafted in a high-level, succinct style and contain provisions enabling standards and legislative provisions.

 
The Report also identified that concerns were raised about the severity of the penalty provisions in the CASR and recommends that CASA reassess these penalties. In addition, the Report recommends that the regulatory audit program reflect international auditing standards (including full disclosure of findings during an audit and for findings to be graded on a scale of seriousness).

 

Next Steps

 
The Federal Government will now also review the recommendations in the Report, as well as any industry comments received. In light of the extensive recommendations made in the Report, it is likely that this review will lead to widespread changes to aviation safety regulation.

 
Industry participants should review the recommendations proposed by the Report and provide any relevant comments to the Department of Infrastructure and Regional Development by 30 June 2014 (here).

 

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For further information, please contact;

 

Paul Newman, Partner, Ashurst
paul.newman@ashurst.com

 
Shane Bosmar, Ashurst
shane.bosma@ashurst.com

 
David Morgansr, Ashurst
david.morgans@ashurst.com

 

Homegrown Shipping, Maritime & Aviation Law Firms in Australia

 

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