Mark Arbib (NSW, Australian Labor Party, Parliamentary Secretary for Government Service Delivery) Share this | Hansard source

I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

CIVIL AVIATION AMENDMENT BILL 2009

On 2 December 2008, the Government released its National Aviation Policy Green Paper which described the initiatives and policy settings the Government is proposing to enable a vibrant and prosperous aviation industry; one that delivers the highest standards of safety and security, competitive aviation markets and services, investment in infrastructure and environmental responsibility.

The National Aviation Policy Green Paper sets out important initiatives in the development of the Government’s aviation reform agenda, which will lead to the nation’s first ever National Aviation Policy White Paper in the second half of 2009.

Today I introduce to Parliament two Bills that implement this Government’s commitment to taking decisive action to strengthen the nation’s safety agencies and their oversight of the aviation industry. Together the Civil Aviation Amendment Bill and the Transport Safety Investigation Amendment Bill will allow the Government to fulfil the undertakings made in the Green Paper to have important enhancements to safety regulation governance in place from 1 July 2009.

The Civil Aviation Amendment Bill will create a small expert Board for the Civil Aviation Safety Authority (CASA)—Australia’s aviation safety regulator—and strengthen CASA’s capacity to take necessary safety action.

The Transport Safety Investigation Amendment Bill, which I will introduce next, will enhance the independence of the Australian Transport Safety Bureau (ATSB) by establishing it as a separate statutory agency with a Commission structure.

Safety is the number one priority for Government aviation agencies, and safety regulation must be robust, efficient and effective. Safety is a core part of the aviation industry and must underpin every aspect of its operation.

Australia enjoys an enviable safety record. Our safety systems are second to none and our government agencies responsible for aviation safety are internationally respected. However, the Government cannot and will not rest on this record.

Our safety agencies must be prepared for their leading role in Australia’s twenty-first century aviation sector. The industry itself is dynamic with the significant industry growth, increasing passenger numbers, and the introduction of new aircraft, technologies and business practices. Of course, Government and industry must share the responsibility for addressing these safety challenges.

The Civil Aviation Amendment Bill improves the capacity and effectiveness of CASA to meet the challenges of an increasingly complex and diverse aviation industry. CASA must have the right structure, resources and legal framework to regulate the civil aviation industry to protect the travelling public, industry participants and the wider community.

The CASA Board created by this legislation will be a small expert Board of five members appointed by the Minister. The Board will strengthen CASA’s governance arrangements, and provide strong support to the Director of Aviation Safety and the Minister. It will also play an important role monitoring CASA’s effectiveness and accountability across its range of functions. The Board will facilitate stronger links between CASA and other government agencies, and allow for more meaningful and constructive input from industry and other relevant stakeholders into strategy.

Circumstances have clearly changed since the decision in 2003 to abolish the CASA Board. Since then, a substantial amount of organisational reform has been undertaken within CASA, something acknowledged by the Senate Standing Committee on Rural and Regional Affairs and Transport in its recent report “Administration of the Civil Aviation Safety Authority (CASA) and related matters”. The way CASA interacts with the aviation industry and the wider Australian aviation community has also evolved. Importantly, this bill implements one of the Senate Committee Report’s key recommendations—to introduce a small board of up to five members to provide enhanced oversight and strategic direction for CASA.

The Board will assist CASA to manage the implications of industry growth and trends such as increasing pressures on secondary airports, low cost carriers, and changing aircraft and navigation technology. There is widespread support within the aviation industry for a new CASA Board, and the Board will ensure effective interaction between the regulator and industry.

The new Board will facilitate better relations across agencies with safety responsibilities and also allow for more meaningful industry input into strategy. It is important to be clear that this Board will not be ‘representational’. CASA’s role inherently involves striking a balance between the competing needs of different industry sectors and, when appointing Board members, the Minister must ensure the Board has an appropriate balance of professional expertise.

The Board will operate at a strategic level—to give high-level direction to CASA’s regulatory and safety oversight role, but not blur the clear lines of authority and accountability for day to day decisions. It will be broadly responsible for CASA’s strategic direction, risk management and corporate planning.

The primary duties of the Board will include deciding on the objectives, strategies and policies to be followed by CASA; ensuring CASA performs its functions in a proper, efficient and effective manner; and ensuring that CASA complies with certain directions given by the Minister.

The Director of Aviation Safety will be an ex officio Board member and continue to manage CASA under the Board’s strategic guidance. The Director will retain executive responsibility for day-to-day decision-making, staffing and financial management. The Director of Aviation Safety will be directly responsible to the Board.

CASA needs to be able to use its oversight and enforcement tools in a progressive and effective manner, consistent with contemporary practices and procedures. This bill introduces a range of measures designed to improve CASA’s ability to take necessary safety actions, particularly in relation to foreign carriers operating into Australia.

There have been significant concerns raised by many inside and outside the industry about CASA’s ability to satisfy itself that all operators flying into Australia are receiving adequate safety oversight outside Australia. In the Green Paper the Government committed to exploring whether CASA’s capacity to take a broader range of issues into account when considering whether to allow a foreign operator to fly into Australia needs to be expanded.

This bill will now amend the Act to achieve higher levels of assurance of safety by improving oversight of foreign carriers flying to Australia. It enables CASA to take greater account of both the conduct of air operators in their home and other jurisdictions, as well as the level of safety oversight provided by civil aviation authorities in other countries. The amendments are consistent with actions taken by the European Union and in North America to address these issues.

The bill also makes an important amendment to ensure that aviation safety is the main focus of key enforcement provisions in the Act. It amends the automatic stay of reviewable decisions provisions to ensure that extensions of automatic stays do not continue for a period up to, and rarely less than 90 days, but are instead subject to a decision by the Administrative Appeals Tribunal (AAT). This will ensure that where CASA takes enforcement action based on safety grounds that give rise to serious safety concerns the automatic stay continues only up to the time the Tribunal makes a decision on an application for a stay. Holders of a civil aviation authorisation will still have the benefit of the 5 day automatic stay, and a further automatic stay after that, but only until the Tribunal can determine any stay application.

These amendments are necessary because the routine application of the ‘automatic stay’ provisions of safety related decisions have effectively nullified CASA’s ability to suspend or cancel the authorisations of operators found to have fallen well below an acceptable level of safety. A number of recent incidents have highlighted how access to legal remedies such as ‘automatic stays’ can arguably have the consequence of allowing operators to remain in the air despite compelling evidence of serious safety deficiencies.

Importantly, the bill will also close a gap in the current legislation by introducing an additional offence of negligently carrying or consigning dangerous goods on an aircraft. The carriage or consignment of dangerous goods is a major safety issue. The inclusion of an offence for the negligent carriage or consignment of these goods will ensure that lack of care in relation to the duty of carriers and consignors is addressed, providing an appropriate and proportionate response to this kind of conduct. This amendment will be welcomed by the aviation industry that has expressed strong support for this approach.

The bill also makes a number of minor or clarifying amendments to ensure CASA’s ability to take necessary safety actions is clear. These include amendments to the demerit point scheme to prevent authorisation holders inappropriately avoiding demerit points; extending the period for which an Enforceable Voluntary Undertaking (EVU) may apply from 6 months to 12 months; and refining CASA’s investigation powers and search warrant procedures to bring them into line with current Commonwealth criminal justice procedures and practices.

The Civil Aviation Amendment Bill 2009 demonstrates this Government’s ongoing commitment to aviation safety—we are taking decisive action now to strengthen the nation’s safety agencies and their oversight of the aviation industry. Following further consultation we will release Australia’s first ever National Aviation Policy White Paper in the second half of 2009.

TRANSPORT SAFETY INVESTIGATION AMENDMENT BILL 2009

The second bill I introduce to the Parliament is the Transport Safety Investigation Amendment Bill 2009. As I stated when I introduced the Civil Aviation Amendment Bill, the Transport Safety Investigation Amendment Bill fulfils undertakings in the Government’s National Aviation Policy Green Paper. The bill will amend the Transport Safety Investigation Act 2003 and enhance the independence of the Australian Transport Safety Bureau (ATSB) by establishing it as a statutory agency within my portfolio. The ATSB will have a Commission structure and the new body will come into being on 1 July 2009.

Australia has an impressive safety record and the ATSB’s accident investigation role is a fundamental part of Australia’s transport safety framework. Under the Transport Safety Investigation Act 2003, the Executive Director of the ATSB already conducts systemic ‘no-blame’ investigations into aviation, marine and rail accidents and incidents with the objective of identifying contributing safety factors. The lessons arising from those investigations are used to prevent future accidents and incidents through the implementation of safety action by the industry and the Government. By making the ATSB a separate statutory agency, public confidence can be strengthened in Australia’s commitment to advance transport safety.

While I am confident that the ATSB has operated successfully as a Division of the Department of Infrastructure, Transport, Regional Development and Local Government, I believe that the future safety of Australian transport will be enhanced by this measure. In 2007 Mr Russell Miller AM was tasked by the then Government to review the relationship between the Civil Aviation Safety Authority (CASA) and the ATSB. In finding there was room for improvement in the way the agencies interact, Mr Miller addressed the ATSB’s governance structure and recommended that the Government move to clarify the ATSB’s independence as the national safety investigation agency. The Government accepted this key recommendation, which received strong support from industry.

Investigations that are independent of transport regulators, government policy makers, and the parties involved in an accident, are better positioned to avoid conflicts of interest and external interference. Consistent with international standards, this bill leaves no doubt that investigations will be conducted without fear or favour and findings will be transparent and objective. Standard 5.4 of Annex 13 to the International Convention on Civil Aviation (the Chicago Convention) states:

The accident investigation authority shall have independence in the conduct of the investigation and have unrestricted authority over its conduct.

Enhanced independence will result from a combination of factors. The ATSB will alone be responsible for administering the functions of the Transport Safety Investigation Act 2003 and exercising its investigation powers. There will be the capacity for the Minister to provide notice of his or her views on the strategic direction for the ATSB, to which the ATSB must have regard. However, other than the ability for the Minister to require the ATSB to investigate a particular matter, the ATSB will not be subject to a direction from anyone with respect to the exercise of its powers and functions.

The creation of a statutory agency will also give the ATSB discretion and responsibilities in its own right under the Public Service Act 1999 and Financial Management and Accountability Act 1997 with respect to the management of its staff and resources. The ATSB will, therefore, have operational independence with respect to the exercise of its investigation powers and functional independence with respect to the administration of its resources.

The ATSB will consist of a full-time Chief Commissioner who will also be the Chief Executive Officer of the agency, and two part-time Commissioners. Commissioners will be appointed by the Minister and they will have an appropriate mix of skills and expertise. Additional Commissioners can be appointed as necessary for major investigations or where a particular skill or expertise is required. The powers in the Act will be vested in the ATSB for overarching responsibilities such as determining which transport safety matters to investigate and publishing reports. Powers relating to day to day investigation activities such as entry to an accident site premises will be vested in the Chief Commissioner. Both the Chief Commissioner and the ATSB will have the ability to delegate powers, as appropriate, for the purpose of carrying out investigations.

A new power that the ATSB will have to assist with its function of improving transport safety is the power to require responses within 90 days to any formal recommendations that it makes. This requirement will provide confidence that the ATSB’s safety recommendations are being properly considered and addressed.

In addition to the function of improving transport safety through investigations and communicating the results of those investigations, the ATSB will have a function involving cooperation. The ATSB will be required to cooperate with similar agencies around the world to ensure there is coordination when investigating a transport accident or incident in cases where another country is in some way connected. Domestically, the ATSB will be required to cooperate with Commonwealth and State and Territory agencies having functions concerning transport safety, or who are affected by the ATSB’s function of improving transport safety. Other agencies, such as the police or a transport safety regulator, are likely to have an interest in conducting investigations into some accidents or incidents that the ATSB is investigating. It is intended that those agencies should continue to be able to conduct their own separate investigations and that there be cooperation to allow this to occur. However, the ATSB will need to preserve the ‘no-blame’ nature of its investigations.

The Transport Safety Investigation Act 2003 already states that it is not an object of the Act to apportion blame or provide the means to determine liability in relation to a transport accident or incident. With the translation of the objects of the current Act into the functions for the ATSB, the Act will state that apportioning blame and determining liability is not a function of the ATSB. Investigations that may result in punitive action will not necessarily have safety information freely flowing to them because there is an apprehension of a penalty by the persons subject to the investigation. This is recognised internationally by Annex 13 to the Chicago Convention and similar International Maritime Organisation instruments.

If the ATSB is to conduct systemic investigations, in the overriding interest of improving future safety, it must have access to all the available information. To preserve the free-flow of information to its investigations, the ATSB will need to maintain an appropriate degree of separation from processes that could result in a punitive outcome, an award of damages to one party against another or an adverse inference being made about a person subject to an investigation. The existing provisions in the Act for the protection of safety information, such as aviation cockpit voice recorders and witness statements, provide part of the framework for the ATSB to prevent itself being involved in the apportionment of blame or the determination of liability. Commissioners, ATSB staff members and consultants will be subject to the requirement to protect this type of information.

The bill provides for transitional provisions so that investigations commenced under legislation existing before the new laws come into effect on 1 July 2009, can be continued by the ATSB. For investigations already completed, the ATSB or the Chief Commissioner, as required, will be able to exercise powers in relation to such things as the disclosure of information. The bill also provides for the ATSB to perform the functions of the Executive Director under other legislation such as the Inspector of Transport Security Act 2006 and regulations made under the Navigation Act 1912 and the Air Navigation Act 1920 establishing confidential reporting schemes. With respect to the confidential reporting schemes, the bill provides for a regulation making power to consolidate those schemes under the Transport Safety Investigation Act 2003 in the future.

The introduction of the Transport Safety Investigation Amendment Bill 2009 will serve to maintain and improve the already excellent safety record of the Australian aviation, marine and rail transport industries by establishing the ATSB as a separate statutory agency. Strengthening the independence of the ATSB in this way will facilitate better interaction with the transport industry and other agencies and demonstrate the Government’s strong commitment to ongoing and important improvements in Australia’s transport safety framework.