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

Following the receipt of responses and a briefing from officials of the Civil Aviation Safety Authority, on behalf of the Standing Committee on Regulations and Ordinances, I give notice that on the next day of sitting I shall withdraw business of the Senate notices of motion Nos 1 to 4 standing in my name for the next day of sitting for the disallowance of instruments Nos. CASA 389/08, 390/08, 397/08 and 414/08, made under the Civil Aviation Regulations 1988. I seek leave to incorporate in Hansard the committee’s correspondence concerning these instruments.

Leave granted.

The correspondence read as follows—

Instruments Nos. CASA 389/08 and CASA 390/08

28 August 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

I refer to the following instruments made under regulation 208 of the Civil Aviation Regulations 1988: CASA 389/08 and CASA 390/08 made on 28 July 2008.

The Committee notes that both of these instruments, which commence on 1 August 2008, are intended to apply in the place of CASA 445/07 which expired on 31 July 2008. As with CASA 445/07 the two instruments appear to provide for the cabin attendant to passenger ratio of one cabin attendant for every 50 passengers carried on Boeing 737-800 series aircraft. The Committee notes that the exemption from Civil Aviation Order 20.16.3 originally provided for in CASA 445/07 is now contained in two instruments, with CASA 389/08 providing for aircraft that carry 50 or fewer passengers and CASA 390/08 for aircraft carrying more than 50 passengers.

Instrument No. CASA 445/07 was subject to a notice of disallowance that was not withdrawn by the Committee until 26 August 2008. Section 47 of the Legislative Instruments Act 2003 prevents the making of a legislative instrument that is the same in substance as an instrument that is subject to disallowance. The Explanatory Statements that accompany these instruments make no reference to the notice of disallowance on CASA 445/07, nor whether legal advice was sought as to the implications of making the instruments while the notice was still active. The Committee would appreciate your advice as to why these two instruments do not breach section 47 of the Act and a copy of any legal advice obtained to support their making.

The Committee would appreciate your advice on the above matter as soon as possible, but before 19 September 2008, to enable it to finalise its consideration of these instruments. 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

10 November 2008

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter dated 28 August 2008 (your reference 115/2008) about the directions given by the Civil Aviation Safety Authority (CASA) under regulation 208 of the Civil Aviation Regulations 1988, in the form of instruments CASA 389/08 and CASA 390/08. In particular, you sought advice as to why these two instruments do not breach section 47 of the Legislative Instruments Act 2003 (LI Act), and a copy of any written legal advice supporting the making of the two instruments.

On 18 June 2008, you gave, on behalf of the Senate Standing Committee on Regulations and Ordinances (the Committee), a notice of motion for disallowance of CASA 445/07, pending answers from CASA about concerns the Committee had regarding the consultation preceding the making of the instrument.

CASA 445/07 was an instrument, expiring on 31 July 2008, directing Qantas Airways Limited (Qantas) in the number of cabin attendants required for certain passenger carrying operations. The directions were based on aviation safety assessments and reduced the number of attendants that might otherwise be required for the operations.

On 26 June 2008 you gave notice of your intention to withdraw your earlier notice of motion of disallowance.

On 26 August 2008, pursuant to the Committee’s notice of intention to do so, you withdrew your notice of motion of disallowance of CASA 445/07. The instrument itself, of course, had expired on 31 July 2008.

As the time approached for CASA 445/07 to expire, CASA considered further directions for Qantas. Two instruments of direction were, therefore, made on 28 July 2008, to take effect on 1 August 2008 for 1 year, directing Qantas, amongst other things, in the number of cabin attendants required for certain passenger carrying operations.

One of these new instruments, CASA 389/08,

• applied solely to Boeing 737-800 aircraft with a maximum seating capacity of 189 passengers, operated by Qantas and carrying 50 or less passengers; and
• contained 7 detailed conditions to be observed by Qantas for the purpose of complying with the direction; and
• took effect on 1 August 2008 for 12 months until 31 July 2009.
• The second new instrument, CASA 390/08,
• applied solely to Boeing 737-800 aircraft with a maximum seating capacity of 189 passengers, operated by Qantas and carrying more than 50 passengers; and
• contained 5 detailed conditions to be observed by Qantas for the purpose of complying with the direction - 4 of these 5 conditions are similar to those in CASA 3 89/08; and
• took effect on 1 August 2008 for 12 months until 31 July 2009.

Response to the Questions

In your letter of 28 August 2008, you ask why, given the fact that your notice of motion was still in force with respect to CASA 445/07, the making of CASA 389/08 and CASA 390/08 on 28 July 2008 was not a contravention of section 47 of the LI Act, in that the two later instruments were ‘the same in substance as’ the earlier one, and therefore contravened the prohibition in section 47.

When it made the two later instruments, CASA was satisfied that they were not the same in substance as the one instrument to which your notice of motion related.

I have been assured that CASA closely considered the LI Act and High Court cases as it reviewed this matter.

CASA naturally also had regard to (a) the imminent expiry of the directions in CASA 445/07 on 31 July 2008, (b) the fact Qantas had been consulted about the nature and content of future directions and that CASA considered that consultation to be adequate for the purposes of section 16 of the Civil Aviation Act 1988 and section 17 of the LI Act, and (c) the fact that safety considerations had been taken into account in deciding whether and in what form to issue such directions.

CASA is a responsive organisation, which does not merely re-issue expired regulatory instruments if improvements enhancing operational safety are possible. CASA is obliged to ensure such improvements are made if and when this can be done.

It should be noted that leading up to the end of July this year, CASA was actively considering Qantas’ application for renewal of its Air Operators Certificate. As part of this process there were a number of approvals, manuals and instruments to be revisited, and the cabin crew instruments were only one aspect of this broader approval exercise. It was in that light that CASA considered the broader question of the Qantas direction and what its appropriate response could and should be in the circumstances to hand, namely (a) the imminent expiry of CASA 445/07, (b) the Committee’s unwithdrawn notice of motion of disallowance, (c) the need for appropriate directions for Qantas, and (d) the need to act consistently with the requirements of section 47 of the LI Act.

In examining all aspects of the matter, I am advised CASA decided to formulate and issue, CASA 389/08 and CASA 390/08, each commencing on 1 August 2008. As the analysis of the contents of the instruments above indicates, CASA took the view that each instrument was not, and the instruments combined were not, the same in substance as CASA 445/07, by reason of:

• the differing content, conditions and effect of the instruments; and, in particular,
• the fact that the time period for the operation of the new instruments differed entirely from that of CASA 445/07.

I am advised it was CASA’s view that an instrument in force during the period 1 August 2008 until 31 July 2009 was not, and regardless of its contents could not be, the same in substance as an instrument in force during the period 14 November 2007 until 31 July 2008, a period that had elapsed.

Time of operation was a critical component part of CASA 445/07, just as it was of the two subsequent instruments. Where a matter as fundamental as the period of time of operation is involved, an instrument taking effect after an earlier instrument has expired would not be the same in substance as the expired instrument.

I am advised the effect of the new re-drafted and re-arranged CASA 389/08 and CASA 390/08, taken as a whole, is clearly not the same in substance as the expired CASA 445/07.

The fact that CASA 389/08 and CASA 390/08 were made on 28 July 2008, should not alter any of the conclusions as to the integrity of the new instruments, because, although made on 28 July 2008, they took effect only on 1 August 2008.

CASA maintains that CASA 389/08 and CASA 390/08 were made consistently with the requirements of section 47 the LI Act, and the course of action adopted in making those instruments was the most appropriate in the circumstances.

The relevant legal issues were canvassed within CASA’s Legal Services Group in the course of drafting CASA 389/08 and CASA 390/08. No formal written advice on the matter was sought or provided at the time.

I have asked CASA to make senior officials available to meet with you to discuss the issue of cabin crew ratios, and I am happy to facilitate that meeting to suit your convenience.

Yours sincerely

Anthony Albanese

Minister for Infrastructure, Transport, Regional Development and Local Government

13 November 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

Thank you for your letters of:

11 November 2008 in relation to CASA Instruments No 222/07, No 364/07, No 445/07 and No 450/07 (your reference 10106-2008); and

10 November 2008 in relation to CASA Instruments 389/08 and 390/08 (your reference -8703-2008).

This correspondence has raised a number of issues including the extent to which CASA provides scope for (and reports on) consultation with people or organisations other than those who are members of the aviation community (for example, airline passengers), and the extent to which other provisions of the Legislative Instruments Act 2003 have been applied (for example, those dealing with remaking instruments ‘the same in substance’ as instruments while they are under consideration by the Parliament).

In your letter you advise that senior CASA officers are available to discuss such issues with the Committee. The Committee would appreciate an opportunity for such a discussion and I have asked the Committee Secretary, Mr James Warmenhoven, to contact your office to arrange this.

One matter on which the Committee would particularly appreciate some further advice concerns the ‘same in substance’ rule, noted above. As you are no doubt aware, section 47 of the Legislative Instruments Act 2003 prevents the making of a legislative instrument that is the same in substance as an instrument that is subject to disallowance. In your letter of 10 November you refer to advice from CASA that Instruments 389/08 and 390/08 are not ‘the same in substance’ as Instrument 445/07 because their content, conditions and effect are different, and, in particular, because “the time period for the operation of the new instruments differed entirely from that of CASA 445/07.”

The Committee is aware that the expression ‘the same in substance’ has been judicially construed to refer to “any regulation which is substantially the same … in the sense that it produces substantially, that is, in large measure, though not in all details, the same effect” (Victorian Chamber of Manufactures v the Commonwealth 1943 67 CLR 347 at 364). The Committee is not aware of any case law that refers to the time of operation as fundamental. If time were always fundamental, it might be suggested that an instrument which operates from 1 January to 31 December, and which is subject to a disallowance notice, or which is disallowed, might then be successfully remade if it applies for a different period (for example, from 1 March to 28 February). If upheld, such a view would make section 47 redundant.

The Committee looks forward to discussing this and other relevant matters with CASA shortly.

Yours sincerely

Senator Dana Wortley

Chair

Instruments Nos. CASA 397/08 and CASA 414/08

4 September 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

I refer to Instrument No. CASA 397/08 and Instrument No. CASA 414/08 made under subregulation 38(1) of the Civil Aviation Regulations 1988.

These interim instruments require compliance by Qantas Airways Limited, Jetstar Airways Pty Ltd and Virgin Blue International Airlines Pty Ltd with each Airworthiness Directive (AD) that is issued by the National Airworthiness Authority of the particular State of Design for certain aircraft. The State of Design AD is to be regarded as if it were an Australian AD. The Explanatory Statement that accompanies each instrument indicates that there is a wider proposal to amend Part 39 of the Civil Aviation Safety Regulations 1998 to authorise all State of Design ADs. The Committee would appreciate your advice clarifying this statement and an explanation as to the implications, if any, of this proposed amendment for future Australian ADs, and for the parliamentary scrutiny of ADs. The Committee notes that, in each case, consultation was undertaken with the individual airlines affected. Given that there appears to be a move to making this approach applicable generally across the industry, the Committee would appreciate your advice on whether wider consultation has been, or will be, undertaken.

The Committee would appreciate your advice on the above matter as soon as possible, but before 19 September 2008, to enable it to finalise its consideration of these instruments. 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

18 September 2008

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations

and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter dated 4 September 2008 (your reference 124/2008) about the Civil Aviation Safety Authority’s (CASA) Instruments CASA No 397/08 and CASA No 414/08 made under sub-regulation 38(1) of the Civil Aviation Regulations 1988 regarding Airworthiness Directives (ADs) issued by the National Airworthiness Authority of the particular State of Design for certain aircraft. You sought advice about the implications of automatically adopting State of Design ADs for future Australian ADs, Parliamentary scrutiny of such ADs and the consultation process.

Under the proposed amendments, which are expected to be made by the end of 2008 or early 2009, foreign State of Design ADs would apply automatically to Australian aircraft operators, without the need for CASA to issue a unique Australian AD that repeats and applies the substance of the foreign AD. Industry, through CASA’ s consultative forum the Standards Consultative Committee, has been encouraging CASA to automatically adopt State of Design ADs for a number of years, as there would be significant cost savings to both industry and CASA with no detriment to safety. Last year, a government Taskforce (the Hawke Taskforce) also concluded that CASA should aim to reduce its unique Australian ADs.

The proposed amendments to Part 39 relate specifically to State of Design ADs and there would be no direct Parliamentary scrutiny of the AD issued by the State of Design. However any AD generated and issued by CASA, either as the Australian State of Design or because of any safety issues identified by CASA, would continue to be a legislative instrument and subject to Parliamentary scrutiny.

I note your comment regarding consultation with individual airlines affected and that there appears to be a move to making this approach applicable generally across the industry. I would like to assure you that this is not the case. CASA continues to operate in accordance with the consultative requirements of the Legislative Instruments Act 2003 and there is no move to change its approach.

Yours sincerely

Anthony Albanese

Minister for Infrastructure, Transport, Regional Development and Local Government

25 September 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

Thank you for your letter of 18 September 2008 responding to the Committee’s concerns with Instrument No. CASA 397/08 and Instrument No. CASA 414/08 made under subregulation 38(1) of the Civil Aviation Regulations 1988. These interim instruments require compliance by Qantas Airways Limited, Jetstar Airways Pty Ltd and Virgin Blue International Airlines Pty Ltd with each Airworthiness Directive (AD) that is issued by the National Airworthiness Authority of the particular State of Design for certain aircraft. In general terms, the State of Design AD is to be regarded as if it were an Australian AD.

In your letter you confirm that, under the proposed general amendments, non-Australian State of Design ADs will no longer be subject to Parliamentary scrutiny, while ADs generated and issued by CASA (either as the Australian State of Design or because of any safety issues identified by CASA) will continue to be considered legislative instruments and subject to Parliamentary scrutiny. Such a distinction, based simply on country of origin of design, seems inherently arbitrary and an invitation to inconsistency. Its effect seems to be to remove a large number of instruments from continuing parliamentary oversight.

The Committee seeks your advice on the means by which any arbitrariness might be mitigated. The Committee also seeks your advice whether any organisations consulted have expressed reservations at this approach.

The Committee would appreciate your urgent advice on the above matters as soon as possible, but before 9 October 2008, to enable it to finalise its consideration of these instruments. 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

13 October 2008

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Room SG49 Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter dated 25 September 2008 (your reference 142/2008) regarding the Committee’s concerns about proposed amendments to Civil Aviation Safety Regulation (CASR) Part 39 on the acceptance of State of Design Airworthiness Directives (ADs) and the consequent effect on parliamentary scrutiny.

Under section 11 of the Civil Aviation Act 1988, the Civil Aviation Safety Authority (CASA) is required to perform its functions in a manner consistent with the obligations of Australia under the Chicago Convention relating to the safety of air navigation. The Chicago Convention mandates compliance with Annex 8 of the international Civil Aviation Organization, which requires the State of Design to have carriage of the responsibility for issuing mandatory airworthiness information necessary to ensure safe operation of the aircraft. Upon receipt of this mandatory information, the State of Registry (in Australia’s case CASA) is required to adopt the mandatory information directly or to assess the information and take the appropriate action.

Currently CASA reissues State of Design ADs as an instrument under subsection 98(5A) of the Civil Aviation Act 1988. Reissuing State of Design ADs is, in most cases, an unnecessary bureaucratic process. Subsection 98(5B) of the Act makes the reissued instruments legislative instruments, and hence subject to parliamentary scrutiny.

State of Design ADs are mandatory safety actions under the requirements of the Chicago Convention. The proposed amendments to CASR Part 39 will mandate acceptance of State of Design ADs through regulation, rather than instrument. CASA has advised me that most national aviation authorities have enacted similar regulations to automatically mandate State of Design ADs.

This is not an arbitrary process. It is totally consistent with numerous other mandatory airworthiness requirements which are made through regulation without parliamentary scrutiny, such as airworthiness limitations, flight manual changes and conditions on foreign type certificates.

In relation to the consultation process, CASA published a Discussion Paper in 2005 and received a favourable response to automatic acceptance of State of Design ADs. CASA published a Notice of Proposed Rule Making (NPRM) on this matter in 2007. Both the Discussion Paper and the NPRM were reviewed by CASA’s Standards Consultative Committee (which includes a broad range of industry representation) prior to publication, without adverse comment. The majority of respondents to the NPRM were in favour of the proposed rule.

I trust this addresses your concerns.

Yours sincerely

Anthony Albanese

Minister for Infrastructure, Transport, Regional Development and Local Government

16 October 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

Thank you for your letter of 13 October responding to the Committee’s concerns with Instrument No. CASA 397/08 and Instrument No. CASA 414/08 made under subregulation 38(1) of the Civil Aviation Regulations 1988. These interim instruments require compliance by certain airlines with each Airworthiness Directive (AD) that is issued by the National Airworthiness Authority of the particular State of Design for certain aircraft. In general terms, the State of Design AD is to be regarded as if it were an Australian AD.

In your letter you provide detailed advice on the process of reissuing State of Design ADs, noting that, in many cases, it represents an “unnecessary bureaucratic process,” and that its reform was supported by the majority of respondents to CASA’s Notice of Proposed Rule Making.

Notwithstanding this, from a parliamentary scrutiny point of view, the effect of the proposed change will be that some instruments in a class will be disallowable and other (almost identical) instruments will not – simply on the basis of their State of Origin. Such an inconsistency seems difficult to rationalise and likely to produce unintended consequences, and the Committee would appreciate your advice on how it might be avoided.

The Committee would appreciate your urgent advice on the above matters as soon as possible, but before 7 November 2008, to enable it to finalise its consideration of these instruments. 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

13 November 2008

Senator Dana Wortley

Chair

Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter dated 16 October 2008 about the Committee’s concern with instruments CASA 397/08 and CASA 414/08.

The Committee has expressed the view that the proposed new approach for mandating direct compliance with foreign State of Design Airworthiness Directives (ADs) seems, from the Parliamentary scrutiny point of view, inconsistent, difficult to rationalise and likely to produce unintended consequences.

Whilst I accept that, from a Parliamentary scrutiny perspective, this may appear to lead to inconsistency in treatment between documents of a substantially similar nature, I do not accept that this inconsistency is difficult to rationalise. Put simply, the amendments proposed to Civil Aviation Safety Regulation (CASR) Part 39 will place foreign State of Design ADs on the same footing as the very large volume of other foreign instruments referred to in the CASRs, which are simply incorporated by reference rather than being re-issued as Australian legislative instruments. Unique Australian ADs will continue to be legislative instruments and will be registered and tabled in Parliament, just as they are currently. Foreign State of Design ADs, on the other hand, which comprise the vast majority of the ADs issued on a worldwide basis, would not be legislative instruments under the Legislative Instruments Act 2003, and therefore not registered and tabled.

It is unclear what ‘unintended consequences’ the Committee anticipates might flow from the proposed new approach for dealing with foreign State of Design ADs. The proposed change is one of form rather than substance. CASA has effectively been accepting State of Design ADs without alteration or amendment for quite some time and has yet to encounter any unintended consequences of this process. To the extent that some unforseen outcome might flow from the automatic acceptance of a State of Design AD, CASA has sufficient powers available to it under Part 39 to deal with that eventuality.

Given Australia’s international obligations in regard to ADs, the new approach to dealing with foreign State of Design ADs will have both safety and efficiency benefits:

(a)

an operator would only have to refer to one document rather than referring to an Australian AD and a foreign State of Design AD;

(b)

the proposed amendments would facilitate CASA’s acceptance of alternate means of compliance (AMOCs) approved by the foreign authority which issued the State of Design AD. The affected operator will no longer need to submit an application to CASA for approval of an exclusion to the AD. This will reduce the costs for industry; and

(c)

most importantly, the proposed amendments will directly enhance aviation safety by removing the delay between (i) the issue of the foreign State of Design AD, and (ii) the issue of an Australian AD by CASA based on the foreign State of Design AD. ADs are issued for safety critical reasons, so any delay in ensuring an Australian aircraft complies with them may prejudice aviation safety.

As indicated in my previous letter, the industry was fully consulted and supports the proposed amendments to CASR Part 39, which are consistent with increasing international reliance on the responsibilities of the State of Design for the continuing airworthiness of aircraft and aeronautical products. Whilst I appreciate that the proposed amendments to CASR Part 39 will have the effect of removing foreign State of Design ADs that CASA has previously re-issued as Australian ADs from Parliamentary scrutiny, CASA officials have assured me that this proposed new approach for dealing with foreign ADs is motivated purely by safety and efficiency objectives. It is important that Parliament oversights Australian legislative instruments. However, I do not believe that it is necessary for Parliament to scrutinise safety decisions made by foreign manufacturers and overseas national aviation authorities.

I trust this addresses the Committee’s concerns.

Yours sincerely

Anthony Albanese

Minister for Infrastructure, Transport, Regional Development and Local Government