On the last Parliamentary sitting day for several weeks (21 February 2019), a bipartisan Bill was introduced into Federal Parliament amending the Civil Aviation Act 1988 which, if adopted, will require CASA to “consider the economic and cost impact on individuals, businesses and community… and take into account the differing risks associated with different industry sectors” in the making of aviation safety standards.

If incorporated, this amendment would likely represent a win for commercial operators, but is potentially an incomplete addendum to CASA prioritisation.

The exceedingly short Outline to the Explanatory Memorandum to the Bill provides as follows:

The purpose of the Bill is to amend the Civil Aviation Act 1988 (CA Act) to ensure the Civil Aviation Safety Authority (CASA), in developing and promulgating aviation safety standards, takes into consideration the impacts of costs and the relative risk environment of the different aviation industry sectors.

The Bill incorporates existing regulatory practice into legislation.

The Bill does not alter Section 9A(1) of the CA Act, which instructs that in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.

In making this amendment, the Government reaffirms that safety remains the primary consideration for CASA in exercising its powers and performing its functions.

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.

The EM goes on to explain that it:

…incorporates existing regulatory practice and certain guiding principles from Australian Government’s Statement of Expectation issued to the CASA Board on 21 March 2017 into legislation…. [and that it] does not create any requirements on individuals or organisations.

There are several problems with this approach and the consultation involved with pursuing it seem skewed even to the outsider.  In fact such an addition to the demands for aviation standards development by CASA, whether or not it legislates existing practice, may be viewed as at best an imbalanced addition to the regulatory oversight responsibilities CASA must abide by – and at worst a one sided and potentially unsafe additional consideration that might in practice displace good regulatory outcomes in favour of cheaper alternatives or inaction.

While the Bill is in hiatus and has not yet passed, the Second Reading Speech by the Hon Mr McCormack, Minister for Infrastructure, Transport and Regional Development, indicated that this move was part of a broader Government imperative of reducing red tape for business.

The Statement of Expectations for the Board of the Civil Aviation Safety Authority for the Period 27 March 2017 to 30 June 2019, from which the Bill derives its focus, is none too clearer as to the extent to which this regulatory practice will play out:

3. Regulatory Approach

In terms of its regulatory approach, my expectation is that CASA will:

(a) continue to focus on aviation safety as the highest priority;

(b) consider the economic and cost impact on individuals, businesses and the community in the development and finalisation of new or amended regulatory changes;

(c) take a pragmatic, practical and proportionate approach to regulation as it applies to different industry sectors having regard to risk; and

(d) implement its regulatory philosophy, with the philosophy being reflected in relevant policies, procedures, manuals, and when CASA personnel are carrying out their day-to-day operations.

While the focus, for businesses in the industry, will be welcomed, the quid pro quo for those on the other side of the equation, ie those who “deliver” aviation to the travelling public (licence holders) is not made.  Certainly regulatory changes are a key focus for CASA and must be – but so is efficient and effective enforcement, oversight and surveillance.

This Bill presents an opportunity to ensure that oversight, investigation and other decisions affecting individual and corporate authorisation holders are also made with a view towards the economic and cost impact to them when they await the (often several months-long) and career and business crippling decision times required for the finalisation of decisions affecting those authorisations/licences and certificates.

The Bill is far from a win-win situation and is likely to be the subject of scrutiny from a variety of interest groups when this complementary aspect of its focus is highlighted, in order to add some equality to the skewed nature of its potential outcomes, as heralded by its skewed consultation.

For more information about the Bill and its effect on your aviation interests, please do not hesitate to contact us at [email protected]. See the Parliamentary information about the progress of the bill at this link.