BILLS DIGEST NO. 10, 2019–20              22 July 2019

Civil Aviation Amendment Bill 2019

Joseph Ayoub
Law and Bills Digest Section 

Date introduced: 4 July 2019

House:  The Senate

Portfolio: Infrastructure, Transport, Cities and Regional Development

Commencement: The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at July 2019.

History of the Bill

During the last Parliament, the Civil Aviation Amendment Bill 2019 (the first Bill) was introduced into the House of Representatives on 21 February 2019 and was passed unopposed by the House on 3 April 2019.[1] The first Bill was not considered by the Senate before the election held on Saturday 18 May 2019.

The Civil Aviation Amendment Bill 2019 (the Bill) was introduced into the Senate on 4 July 2019 after the current Parliament commenced and is in identical terms to the first Bill.

Purpose of the Bill

The purpose of the Bill is to amend section 9A the Civil Aviation Act 1988 to require the Civil Aviation Safety Authority (CASA) to consider additional factors when making aviation safety standards under paragraph 9(1)(c) of the Act.

Background

In April 2018, Dick Smith, former Chairman of the Civil Aviation Safety Authority (CASA), delivered a public address in Wagga Wagga on ‘The destruction of the general aviation and flight training industry in Australia’. In his speech, Mr Smith presented six proposals for ‘revitalising the aviation industry’, including amending the Civil Aviation Act so that CASA would be required to consider costs implications when performing its functions.[2] Mr Smith stated that Barnaby Joyce and Anthony Albanese, as Minister and Shadow Minister for Infrastructure and Transport, had given bipartisan support for the proposed change, but ‘the prospect of a bipartisan deal crashed days later with Mr Joyce’s resignation from cabinet’.[3]

In July 2018 an Aviation Summit was hosted by the Australian General Aviation Alliance (AGAA).[4] The Summit was attended by over 100 delegates from a number of industry associations, aviation experts, Department and regulatory representatives including CASA and Airservices Australia, as well as Federal members and Senators.[5] The Aviation Summit resulted in Summit Resolutions being passed and provided to Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development, Michael McCormack—the resolutions include, among other things, amending section 9A of the Civil Aviation Act. The intent of the resolution is in line with the proposed changes made by the Bill.[6]

Aviation safety standards

The main object of the Civil Aviation Act is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.[7]

The Civil Aviation Safety Authority’s role

The Civil Aviation Safety Authority (CASA) is established as an independent statutory authority under section 8 of the Civil Aviation Act 1988 and is responsible for the safety regulation of civil air operations in Australian territory and the operation of Australian aircraft outside Australian territory.[8]

One of CASA’s functions is to develop and promulgate appropriate, clear and concise aviation safety standards.[9]

‘Aviation safety standards’ are defined under section 3 of the Civil Aviation Act and include standards relating to the following:

•       the flight crews engaged in operations of aircraft

•       the design, construction, maintenance, operation and use of aircraft and related equipment

•       the personnel engaged in and the planning, construction, establishment, operation and use of aerodromes

•       the establishment and use of airspace

•       the personnel engaged in the maintenance of aircraft and related equipment

•       personnel engaged in and the planning, construction, establishment, maintenance, operation and use of services and facilities:

–      for the purposes of complying with Australia’s international obligations in relation to aviation, or otherwise relating to the safety, regularity or efficiency of air navigation or

–      associated with search and rescue services provided by the Australian Maritime Safety Authority.[10]

Key issues and provisions

Matters CASA considers when making aviation safety standards

Subsection 9A(1) of the Civil Aviation Act requires that CASA must regard the safety of air navigation as the most important consideration when exercising its powers or performing its functions, including developing aviation safety standards.

Subject to this primary consideration, CASA must also ensure that when exercising its powers or performing its functions and as far as is practicable, the environment is protected from the effects of, and the effects associated with, the operation and use of aircraft.[11]

Item 1 of Schedule 1 of the Bill inserts proposed subsection 9A(3) into the Civil Aviation Act. This would require CASA to consider the following additional factors, subject to the primary consideration being the safety of air navigation, when making aviation safety standards:

•       the economic and cost impact on individuals, businesses and the community of the standards, and

•       the differing risks associated with different industry sectors.

The proposed subsection applies to CASA’s development of aviation safety standards under paragraph 9(1)(c) of the Civil Aviation Act rather than to CASA’s powers and functions more broadly.

The amendment is consistent with CASA’s regulatory philosophy which ‘sets out the principles underpinning the way we perform our functions, exercise our power and engage with the aviation community’. The philosophy sets out ten principles, one of which relates to safety and cost. Principle two provides that, although safety is the most important consideration, ‘CASA is required to take all relevant considerations, including cost, into account’:

Where reasonable alternative approaches to the fulfillment of a regulatory requirement-

·         satisfy applicable legal requirements and

·         do not unacceptably compromise safety.

CASA will readily entertain such alternatives if they are proposed, and accept them in the absence of compelling reasons not to do so.[12]

The amendment may also be regarded as consistent with CASA’s Directive 01/2015: Development and Application of Risk- Based and Cost- Effective Aviation Safety Regulations (Directive 01/2015) issued by then Director of Aviation Safety, Mark Skidmore. Directive 01/2015 ensures CASA justifies regulatory change on the basis of safety risk and does not impose unnecessary costs on, or hinder participation in, aviation. Directive 01/2015 also extends such principles to the application and administration of the Regulations.[13] The guiding principles include among other things:

•       Regulations must be shown to be necessary—that is, they are to be developed to address known or likely safety risks that cannot be addressed effectively by non-regulatory means alone

•       Regulations must not impose unnecessary costs or unnecessarily hinder levels of participation in aviation and its capacity for growth

•       CASA will align its Regulations with international standards and practices that effectively address identified safety risks in the most cost-effective manner and

•       CASA must consult appropriately with industry in an open and transparent manner.[14]

The proposed amendment is also consistent with the Minister’s Statement of Expectations for the Board of the Civil Aviation Safety Authority for the Period 15 July 2019 to 30 June 2021 which states that the Minister expects CASA to continue to approach its regulator philosophy with:

•       a focus on aviation safety as the highest priority

•       consideration of the economic and cost impact on individuals, businesses and the community in the development and finalisation of new or amended regulatory changes and

•       a pragmatic, practical and proportionate approach to regulation as it applies to different industry sectors.[15]

Committee consideration

Senate Standing Committee for Selection of Bills

The Senate Standing Committee for Selection of Bills deferred consideration of the Bill to its next meeting.[16]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills has not yet considered the Bill; however the Committee had no comment on the first Bill.[17]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible as it promotes the right to effective remedy in Article 2(3) of the International Covenant on Civil and Political Rights.[18]

Parliamentary Joint Committee on Human Rights

Although the Parliamentary Joint Committee on Human Rights has not yet reported on the Bill, it considered that the first Bill, which was in identical terms, did not raise human rights concerns.[19]

Policy position of non-government parties/independents

Australian Labor Party

The Australian Labor Party (Labor) supported the first Bill in the House of Representatives. In his second reading speech, then Shadow Minister for Infrastructure, Transport, Cities and Regional Development Anthony Albanese expressed Labor’s bipartisan support for the first Bill but considered that the Bill did not go far enough:

Of course, there is no margin for error when it comes to aviation safety. It's that simple. Another responsibility of the parliament is, of course, the need to avoid unnecessary red tape getting in the way of business activity. Business drives economic growth. It creates jobs and supports our standard of living. Aviation is an important business, particularly in regional communities. What this legislation does is go to the issue of general aviation. There has been a lot of concern from operators of general aviation about the regulatory burden that is placed upon them…

What we've tried to do is to move forward the agenda. This bill before us, as I said, is in my view not perfect, but I'm not going to allow the perfect to be the enemy of the good and the practical, which is why I have supported this legislation.[20]

Centre Alliance

In a media release in April 2018 Centre Alliance Senator, Rex Patrick expressed his concern with the current regulatory environment stating that he was ‘in absolute agreement with Dick Smith on this - we have to have a more pragmatic approach’:

Other jurisdictions provide a safe operating framework whilst having regard to the need for a healthy industry. We can and must do something here to arrest the decline in General Aviation - it’s a critical part of services to the regional areas.[21]

Senator Patrick has also made similar remarks about the regulatory environment in response to changes made by a legislative instrument which increased the conditions relating to community service flights for medical patients. In this respect, both Senator Patrick and fellow Centre Alliance representative Rebekha Sharkie moved disallowance motions in each respective chamber.[22] In a press release, Senator Patrick stated:

CASA is an organisation that sadly seems to pride itself in the amount of regulation it imposes on pilots and aircraft operators, rather than working in partnership with industry to achieve safety outcomes… This red-tape growth has served to kill off general aviation over the past decade. General aviation is an essential service for regional and remote areas and is the breeding ground for airline pilots.[23]

Katter’s Australian Party

Bob Katter also moved to disallow the legislative instrument relating to community service flights. In a press release relating to the instrument, he was highly critical of CASA’s approach to safety regulation.[24]

Position of major interest groups

The Summit Resolutions arising out of the Aviation Summit together with the following statement in the Explanatory Memorandum to the Bill would indicate that the proposed change is generally supported by the aviation industry:

Consultation was undertaken with the General Aviation Advisory Group, the Australian Airports Association, the Board of Airline Representatives Australia, Qantas and Virgin between November and December 2018. No concerns were raised regarding the intent of the changes.[25]

In relation to the first Bill, Regional Express Chief Operating Officer Neville Howell said:

This amendment to the Civil Aviation Act is strongly supported by Rex and closely mirrors the guiding principles espoused in CASA’s Directive 01/2015, which states among other things, that aviation safety regulations must ‘be shown to be necessary’, ‘address known or likely safety risks’ and that ‘every proposed regulation must be assessed against the contribution it will make to aviation safety’.[26]

Financial implications

According to the Explanatory Memorandum, the Bill ‘is not expected to have significant financial impact’ on the Commonwealth.[27]

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[1].              Australia, House of Representatives, ‘Civil Aviation Amendment Bill 2019’, Votes and proceedings, 165, 3 April 2019, p. 2176.

[2].              Aircraft Owners and Pilots Association (AOPA), ‘Important air safety alert: the destruction of the general aviation and flight training industry in Australia’, Dick Smith Wagga address April 26 2018, AOPA website, May 2018, p. 16; A Lewis, ‘Aviation icon Dick Smith to speak in Wagga on industry reform’ Daily Advertiser, 25 April 2018.

[3].              A Burrell, ‘Joyce affair “sank aviation reform"’, The Australian, 14 March 2018, p. 1.

[4].              Sport Aircraft Association of Australia (SAAA), ‘General Aviation Summit 2018 – Wagga Wagga’, SAAA website. The AGAA was established in January 2018 by industry bodies Aircraft Owners and Pilots Association of Australia, Aviation Maintenance Repair and Overhaul Business Association Inc. and SAAA; see Australian General Aviation Alliance (AGAA), ‘“Promoting and Protecting your Freedom to Fly”’, AGAA website.

[5].              AOPA, Sport Aircraft Association of Australia and Aviation Maintenance Repair and Overhaul Business Association Inc., ‘Summit Resolutions: General Aviation Summit 2018-Update to the Civil Aviation Act’, held at Wagga Wagga 9–10 July 2018, Letter to Michael McCormack Deputy Prime Minister and Minister for Infrastructure and Transport), 17 July 2018, pp. 2 and 9.

[6].              Ibid., p. 3.

[7].              Civil Aviation Act 1988, section 3A.

[8].              Civil Aviation Act, paragraph 9(1)(a) and (b); Civil Aviation Safety Authority (CASA), ‘The Civil Aviation Safety Authority’, CASA website.

[9].              Civil Aviation Act, paragraph 9(1)(c).

[10].              Civil Aviation Act, section 3, definition of ‘aviation safety standards’.

[11].              Civil Aviation Act, subsections 9A(1) and (2).

[12].              CASA, ‘Our regulatory philosophy’, CASA website, last modified 23 June 2019.

[13].              CASA, Development and Application of Risk- Based and Cost- Effective Aviation Safety Regulations, Directive 01/2015, issue 2, 28 January 2016, p. 1.

[14].              Ibid., pp. 2–3.

[15].              Statement of Expectations for the Board of the Civil Aviation Safety Authority for the Period 15 July 2019 to 30 June 2021, section 3. Note also, this is consistent with the Minister’s Statement of Expectations for the Board of the Civil Aviation Safety Authority for the Period 27 March 2017 to 30 June 2019 (no longer in force), clause 3.

[16].              Senate Standing Committee for the Selection of Bills, Report, 2, 2019, The Senate, 4 July 2019, p. 3.

[17].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 2, 2019, The Senate, 28 March 2019, p. 75.

[18].              The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill.

[19].              Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 2, 2019, 2 April 2019, p. 169.

[20].              A Albanese, ‘Second reading speech: Civil Aviation Amendment Bill 2019’, House of Representatives, Debates, 3 April 2019, p. 14596.

[21].              R Patrick, Political turbulence exacerbates general aviation's bumpy ride, media release, 12 April 2018.

[22].              Australia, Senate, Journals, 141, 2 April 2019, p. 4780; R Sharkie, ‘Notices’, House of Representatives, Debates, 18 February 2019, p. 13767.

[23].              R Patrick, Centre Alliance moves to stop Angel Flights wings being clipped: disallowance motions to be lodged to protect community service flights, media release, 17 February 2019.

[24].              B Katter, ‘Notices’, House of Representatives, Debates, 21 February 2019, p. 14389; Katter’s Australian Party, Katter shoots downs CASA overhaul that could kill Angel Flight, media release, 29 January 2019.

[25].              Explanatory Memorandum, Civil Aviation Amendment Bill 2019, p. 2.

[26].              Regional Express, Regional express welcomes Civil Aviation Amendment Bill 2019, media release, 28 February 2019.

[27].              Explanatory Memorandum, Civil Aviation Amendment Bill 2019, p. 2.