Dana Wortley (SA, Australian Labor Party) Share this | Hansard source

On behalf of the Senate Standing Committee on Regulations and Ordinances, following the receipt of a satisfactory response I give notice that on the next day of sitting I shall withdraw business of the Senate notices of motion Nos 2, 3, 4 and 5 standing in my name for 10 sitting days after today for the disallowance of Instrument No. CASA 222/07, Instrument No. CASA 364/07, Instrument No. CASA 445/07 and Instrument No. CASA 450/07. I seek leave to incorporate in Hansard the committee’s correspondence concerning these instruments.

Leave granted.

Instruments Nos. CASA 222/07, 364/07, 445/07 and 450/07

13 March 2008

The Hon Anthony Albanese MP

Minister for Infrastructure, Transport, Regional Development and Local Government

Suite MG.43

Parliament House

CANBERRA ACT 2600

Dear Minister

On 20 September 2007 the Committee wrote to the former Minister for Transport and Regional Development, the Hon Mark Vaile MP, seeking advice on certain matters relating to CASA Instrument No 222/07 made under regulation 208 of the Civil Aviation Regulations 1988. The Committee was awaiting a response when the Parliament was prorogued for the last federal election and owing to the change in government at that election; the Department requested that this matter be referred to you.

This instrument, which permits Jetstar Airways Pty Ltd to operate certain aircraft with a reduced number of cabin attendants, is in similar terms to previous instruments which make the same provision for other airlines (CASA Instrument No 321/06, which relates to Virgin Blue Airlines Pty Ltd, and CASA Instrument No 172/07, which relates to Pacific Blue Airlines (NZ) Ltd.)

The Committee has received advice from professional associations involved in the aviation industry expressing concern at the level of consultation undertaken prior to the making of these instruments.

Instrument No 321/06 refers to consultation both “within CASA and with Virgin Blue”, with consultation concluded by the signing of a document outlining agreements and undertakings. Instrument No 172/07 states that no consultation was conducted because the direction “is in terms identical to one previously issued to another operator in respect of the same type of aircraft” and that “any other operator requesting a direction in the same terms would have to meet the same or an equivalent standard”. This Standard seems to involve briefing passengers seated in the overwing emergency exit rows on emergency evacuation procedures. Instrument No 222/07 simply states that consultation was not undertaken “because the instrument is similar to a previous instrument issued to another operator”.

No wider consultation seems to have been undertaken on these instruments. The Committee has been advised that wider consultation with specialist stakeholders may have led to the canvassing of a number of significant technical issues including evacuation efficiency, crew member redundancy and effective security oversight, and have led to a more complete analysis of the safety of the proposals.

In addition, the Committee has been advised that these instruments run counter to a statement made to the Parliament by then Minister John Anderson on 2 June 2003. This statement, which was made following a review of Notice of Proposed Rule making (NPRM) 0211 OS, affirmed that Australian cabin crew ratios would not be altered.

Finally, could you advise whether the Office of Best Practice Regulation was consulted about the need for a Regulation Impact Statement?

The Committee notes that since it last wrote to the former Minister further instruments have been made that reduce the number of cabin attendants across a variety of aircraft types ─ CASA Instrument No 344/07 with relates to Macair Airlines Pty Ltd, CASA Instrument No 364/07 with relates to Capiteq Limited, CASA Instrument No 445/07 with relates to Qantas Airways Ltd and CASA Instrument No 350/07 with relates to Tiger Airways Pty Limited. The explanatory statements that accompany these instruments also advise that consultation was not undertaken.

The Committee would appreciate your advice on the above matters as soon as possible, but before 28 April 2008, to enable it to finalise its consideration of this instrument. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair

Response received 26 June 2008

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House CANBERRA

Dear Senator Wortley

I refer to your letter of 13 March 2008 (your reference 45/2008) about the Civil Aviation Safety Authority’s (CASA) Instrument No 222/07 made under Regulation 208 of the Civil Aviation Regulations (CAR) 1988, regarding cabin crew ratios on Jetstar aircraft. I also refer to the Committee’s recent motions to disallow similar instruments for Qantas, Tiger Airways and Capiteq Limited (Airnorth).

Your letter raises important questions regarding these instruments, primarily relating to the safety outcome, the consultation undertaken and whether the Office of Best Practice Regulation (OBPR) was consulted with regard to the need for a Regulation Impact Statement (RIS).

I understand that CASA has conducted thorough assessments of the safety cases provided by the operators in question. In each case the application process included a comprehensive review of the application and the applicable standards, meetings with the operators to resolve issues, and practical demonstrations including evacuation efficiency and crew member redundancy issues.

Given the complexity of the proposals, the safety cases put up by the operators generally take CASA months of detailed review, consultation and testing.

The regulation against which these instruments were issued is now almost 50 years old and does not consider the numerous advances in aviation technology over that time.

As part of the evaluation process, CASA has considered the certification standards for the aircraft and standards applied in other advanced aviation countries including the US, UK and NZ. It is worth noting that, in these countries, similar judgments have been made, effectively based on the type certification of the aircraft types for which CASA has now also provided exemptions in these four cases.

With regard to consultation, under section 17 of the Legislative Instruments Act 2003 (L1A), my understanding is that the rule-maker must be satisfied that any consultation it considers to be appropriate, and that is reasonably practicable to undertake, has been undertaken.

I am advised that CASA considers that appropriate consultation has been undertaken in this case.

In relation to your concerns regarding RIS, the OBPR was not consulted. As you would be aware, RISs are not required when business compliance costs and other impacts are considered to be low. CASA produces hundreds of legislative instruments annually and is currently discussing with OBPR the policy related to legislative instruments such as these.

With regard to safety, you would be aware that, under section 9 of the Civil Aviation Act 1988, CASA’s functions are all essentially safety-related, and a central feature of that responsibility involves making a range of safety-related judgements. In the context of cabin crew ratios, I believe that CASA has made appropriate safety judgements and that these instruments should not be disallowed.

I acknowledge that the development and implementation of aviation regulations is a complex process for the regulator and industry and there is an opportunity for this matter to be addressed as part of the forthcoming aviation white paper.

Yours sincerely

Anthony Albanese

Minister for Infrastructure, Transport, Regional Development and Local Government