Nick Xenophon (SA, Independent) Share this | Hansard source

I move:

That the Aviation Transport Security Amendment Regulations 2010 (No. 1), as contained in Select Legislative Instrument 2010 No. 80 and made under the Aviation Transport Security Act 2004, be disallowed.

In September last year I moved a disallowance motion against the Aviation Transport Security Amendment Regulations 2009, which included strict liability provisions against pilots which were then and still are today internationally unprecedented and unacceptable. My motion last year was supported by both the opposition and the Australian Greens. I thank them for supporting last year’s common-sense motion to disallow the regulations. Imagine my surprise, then, when on Wednesday, 12 May, in the first sitting week since the six-month disallowance period expired, the government announced it was introducing near identical regulations under the Aviation Transport Security Act to come into effect on 22 May. Once again, under these regulations, it will be an offence of strict liability by a pilot if the cockpit door is not locked when the aircraft is in flight. For example, if a pilot in command while flying his or her aircraft called someone from the cabin crew into the cockpit and the crew member accidentally failed to lock the cockpit door securely, under these regulations the pilot would be held liable. Because the regulations specify the pilot in command, another potential scenario could be that the pilot in command takes a break and is out of the cockpit when the pilot navigating the plane accidentally leaves the door open. Even in this circumstance, the pilot in command would be held liable. Under the offence of strict liability, only the act needs to be proven for someone to be found guilty. It is something that airline pilots in Australia have been very critical of, very concerned about, and at an international level there has been comment made about it. I will go to that shortly.

This regulation shows how poorly thought out these regulations are. During the recent Senate estimates, Mr Peter Robertson, General Manager Aviation Security with the Office of Transport Security, said that there was concern around ‘vulnerability created through a general provision of access to the cockpit’. He said:

As you can imagine, the consequences of a breach there can be substantial; catastrophic, in fact. It is the ultimate goal of the terrorist to be able to take control of an aircraft and create shock and awe. We are trying to protect against a vulnerability that could be exploited in any way ...

I do believe that security in our skies is absolutely crucial. There is no question about that. I share the government’s concern about trying to ensure absolute safety for passengers and crew on aircraft, but I would prefer the pilot on a plane to be looking out of the window of the plane and not checking the door behind him just in case someone has not closed it properly. When we consider issues of security on aircraft we should be guided by the pilots who have command of those aircraft. They would know better than, with respect, any bureaucrat that is looking at this particular issue.

My concern is that under these regulations pilots will be held responsible if a so-called unauthorised person enters or remains in the cockpit of the aircraft when the aircraft is in flight under his or her command. These ‘unauthorised persons’ include anyone who is not a member of the aircraft’s crew and is not otherwise permitted by the operator or the Civil Aviation Safety Authority to be in the cockpit during the flight. That means that in the unlikely event of an emergency an off-duty pilot who is on the flight but not on the flight deck at that time would not be allowed to access the cockpit to assist and ensure the safety of passengers, because that would be illegal. I think that defies common sense. On the issue of whether an off-duty pilot should be allowed to be in the jump seat in the cockpit of an aircraft, Mr John McCormack, Director of Aviation Safety with the Civil Aviation Safety Authority, acknowledged that his personal opinion was that that was not a safety issue. I think it would actually enhance safety to have another set of eyes, that of an off-duty pilot, in the cockpit. I have given a number of examples previously where having an off-duty pilot on an aircraft was very beneficial for safety. There have been a number of such instances in recent times around the world.

I moved a disallowance motion against these regulations last year, and I move a disallowance motion again today, because they are a significant departure from global practice. The government will say that consultation did occur between the department and various airlines, pilots associations, unions and flight attendants’ representatives following the disallowance passed last year in preparation for the regulations to be reinstated, but I would like to know what the government says constitutes consultation because none of the pilots associations or representatives that my office has spoken to, or the pilots I have spoken to, can remember any consultation taking place. They acknowledge that meetings were held initially to discuss concerns, but there was nothing beyond that, I am told, and certainly they were not privy to a viewing of any of the redraft regulations so they could provide further comment.

The President of the International Federation of Air Line Pilots’ Associations, Captain Carlos Limon, was recently in Australia, and during his time here he campaigned heavily against these regulations. Captain Limon is London based and has flown all over the world and he says he has never come across regulations such as these. He recently said in a statement:

This proposal runs counter to internationally accepted conventions that the airline as the Air Operator Certificate holder is ultimately responsible for regulatory compliance. Abandonment of this principle could have far reaching effects for aviation safety since it could allow unscrupulous operators to claim they have no responsibility for safety of operations.

Second, in its present form the legislation—

that is, the regulations—

will exclude licensed company pilots from the list of people allowed to travel on the flight deck. This proposal is without merit, since past experience in real world operations has shown that an additional pilot on the flight deck enhances the safety of flight operations.

Captain Limon goes on to say:

Furthermore, the fact that this legislation supposes that a pilot, who may well have been in command of another company aircraft shortly before or subsequently, somehow poses a security risk when travelling on the flight deck when off duty …

is conceptually very poor and illogical. I note that similar concerns have been expressed by pilots in the Australian and International Pilots Association in terms of these new regulations.

This is a case where it is important that the government adequately consults with airline pilots. It is important to consult with those who have responsibility for the safety of aircraft. There is no-one who wants more to be able to go safely from point A to point B in an aircraft than the pilot and crew. That is their interest. They want to do the right thing by the safety of passengers and, when you have pilots associations, both here and internationally, saying that these are unprecedented, unfair and counterproductive regulations then they ought to be defeated. With due respect to the government, I believe they ought to go back to the drawing board to consult with airline pilots in a meaningful way so that we can ensure that these sorts of regulations are not brought up again. I think it is important that we listen to the pilots in relation to this. We should listen to those who have the primary responsibility for the safety of their passengers and crew. If we choose not to listen to the pilots, we do so at our peril. That is why I have moved this motion to disallow these regulations and I would urge for the support of my colleagues, again, in relation to this.