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

I move:

That the Civil Aviation Order 48.1 Instrument 2013, made under subregulations 5(1), 5.55(1) and 215(3), and regulation 210A of the Civil Aviation Regulations 1988, subregulation 11.068(1) of the Civil Aviation Safety Regulations 1998, section 4 and subsection 33(3) of the Acts Interpretation Act 1901, and paragraph 28BA(1)(b) and subsection 98(4A) of the Civil Aviation Act 1988, be disallowed [F2013L00628].

The aim of this motion is to disallow the Civil Aviation Order 48.1 Instrument 2013, which outlines provisions in relation to fatigue management in the aviation industry. At the outset I want to thank the Australian International Pilots Association for their assistance in these matters. I also want to acknowledge representatives of CASA, including the director of aviation safety, who spent time discussing the regulations with me, although they were not able to address my concerns.

These regulations are in some areas a significant improvement over the existing framework. I want to make it very clear, however, that in other areas they are incredibly behind the level Australia should be aiming for as an aviation world leader and that they are, quite frankly, potentially unsafe. There is an argument that the regulations should not be disallowed, because of these improvements. But my concern is that it has taken many years for these regulations to be updated. In my view it is unlikely they will be refined or improved in the near future. That is why this disallowance motion is so important. It would force the relevant parties to go back to the table to come up with a much better outcome. It is far more likely that these regulations will be the ones we have to live with for years to come. So near enough must not be considered good enough, simply because CASA is under pressure to produce the new long-delayed rules.

Part 48 of the civil aviation order was introduced in the 1950s and was based mostly on empirical evidence from World War II and from the expansion of commercial aviation rather than any scientific knowledge or evidence. It remained largely unaltered until the 1990s, when standard industry exemptions were introduced in response to commercial demands. These exemptions were not based on available scientific evidence and instead were aimed at allowing airlines to maximise profits, regardless of the safety of their crews or passengers.

Mr Acting Deputy President Sterle, you well know—you sat on an inquiry into aviation safety several years ago—that there was a leaked email from a Jetstar pilot who had responsibility for the Perth base of Jetstar where some of the pilots complained about fatigue. The email was famously headed 'Toughen up princesses!' That is a real concern. Senator Heffernan, who was the chair of the Rural and Regional Affairs and Transport Committee, was there on the day that evidence was given.

The new rules in this instrument still retain that commercial bias. They allow operators to use fatigue risk management systems to exceed duty limits in a way that may be unsafe and not subject to any independent scrutiny. The International Civil Aviation Organisation, or ICAO, has set out requirements for fatigue management which explicitly state that regulations should be based on scientific principles and knowledge. Instead, CASA has based many of their regulations on so-called 'operational experience', a tainted concept that can mean little more than what operators are already doing. I believe, if I can put it in these terms, it is a regulatory version of 'because I said so'.

We have already seen in previous Senate inquiries that operators, including Jetstar, Pel-Air and Avtex-Skymaster, are not even meeting the poor requirements we have now. Worse, CASA does not always enforce those regulations. Its special audit of Pel-Air's FRMS, their fatigue risk management system, revealed in the Senate inquiry into aviation accident investigations—and I note that Senator Fawcett, who is in the chamber, played a critical and very constructive role in that—stated:

Previous CASA oversight did not provide sufficient evidence to confirm the Pel-Air FRMS had ever been managing fatigue risk to a necessary standard.

Another example of CASA's lax attitude, as I put it, to fatigue can be seen in the Senate's earlier inquiry into pilot training and airline safety. Responding to a question on notice regarding significant duty extensions for Jetstar crew in 2011, CASA responded:

CASA does not consider that these extensions require continual monitoring.

The duty extensions recorded in January 2011 by Jetstar were a result of flight crew agreeing to operate beyond the standard 12 hour initial limits as provided for within Civil Aviation Order 48 Exemption. No breaches of the 14 hour condition were recorded.

Yet crews had to extend beyond the maximum normal limit due to inadequate planning by Jetstar which CASA, I believe, chose to ignore. Again, CASA's position is that the duty extensions are safe 'because they said so'.

There are some new controls on extensions, but there are other permissible delays to extending a flight that may well render the changes redundant—ineffective, in a sense. This is simply not good enough. Australia should be aiming to set a world standard in aviation, not to put in place the bare minimum to scrape by. A common response to discussions about fatigue is that pilots are the only ones who can decide if they are too fatigued to fly. Even Mr McCormick, Director of Aviation Safety at CASA, apparently subscribes to this view. He stated on ABC's Four Corners in relation to the Pel-Air incident:

In the end it's only the pilot who can decide whether he is fatigued or he or she is fatigued and unable to conduct a flight.

Unfortunately, this view—while common—ignores both scientific studies of fatigue and common sense. It is also extremely concerning that CASA's Director of Aviation Safety states this, because apparently he believes it to be true. Firstly, the director should know that asking someone to describe their fatigue levels is a bit like asking someone how drunk they are. Because fatigue impairs our ability to reason and make accurate judgements, you cannot ask someone who is fatigued to make a reasoned and accurate judgement about their own fatigue levels. Like the drunk who is convinced he is fine to drive, someone who is fatigued may feel fine or think they are functioning well enough to fulfil their tasks, until circumstances prove them wrong. It is not that they are irresponsible or taking risks but simply that their ability to make the decision has been compromised. Secondly, this argument ignores the broader context in which pilots operate. They might be under pressure from their employer to work, or their workplace might have a culture of 'pushing through' sickness or fatigue. Their hours may be uncertain, and they may want to take work whenever it is available.

Evidence provided to a UK parliamentary transport committee inquiry by the European Cockpit Association in 2012 stated:

More importantly: fatigue is significantly under-reported by the pilots themselves. This is because pilots do not file reports on an aspect that has become a “normal” part of their daily work. Many are afraid their fatigue reports could have negative consequences for their professional future (ie reprisals by management)—a phenomenon that is growing—particularly when pilots refuse to fly because they are too fatigued. Indeed UK polling results show that 33% of pilots would not feel comfortable refusing to fly if fatigued, and of those who would, three quarters would have reservations. Once a pilot has decided they have no option but to fly, a fatigue report would be tantamount to writing the evidence for their own prosecution.

I am informed that the situation in Australia is very similar.

It makes sense, therefore, that fatigue regulations should create a safety net that takes the decisions away from pilots and from their employers and fosters a culture where 'pushing through' is no longer acceptable. My concerns relate to specific provisions in the regulations, including rest requirements in preparation for a flight, maximum flight-duty periods, delayed reporting times, extensions of duty, standby times and augmented operations. These new regulations pay nothing more than lip service to the science behind the 'window of circadian low' and instead retain 5 am as the start time for a flight-duty period that does not incur additional rest requirements. The window of circadian low, or WOCL, refers to the time when most people have their deepest sleep and the body is most likely to need sleep. The most widely accepted scientific definition of this time is between 2 am to 6 am, although CASA defines it as between 2 am and 5 am. Either way, duties starting at 5 am have a significant impact on pilots' ability to sleep during this crucial period, particularly given that pilots obviously need to be awake on average two hours before their shift begins. This start time has been carried over from the previous regulations and has its origins in commercial imperatives: if pilots can start at 5 am without penalties, then the high consumer demand for 6 am flights can be more easily met. In practice a pilot could be rostered to start at 5 am, five days a week, every week. This will obviously create a significant sleep debt in a very short period and have serious impacts on a pilot's ability to function.

I note that the regulations do include new provisions in relation to sleep opportunity where time between shifts includes a minimum number of sleep hours plus additional time for reasonable requirements of bodily functioning such as eating, washing, dressing and so on. This is an improvement on the previous regulations where all of these tasks were bundled into one relatively short rest period, and I acknowledge that.

However, there are also provisions to allow reduced rest periods in certain circumstances. It is particularly concerning that these regulations actually increase the number of hours that can be flown after reduced rest, essentially allowing a normal shift to take place even where the minimum rest requirements have not been met. This is not scientifically sound. Neither the FAA in the United States nor the EASA in Europe allow this to happen outside their minimum standards, which are 10 hours with an eight-hour sleep opportunity.

CASA has also set maximum flight duty periods beyond what other regulators consider acceptable by fixing flight duty periods at 14 hours with 10 hours at the controls. In contrast, the FAA and the EASA have set their normal maximums at 13 hours. The FAA refused to extend time at the controls to 10 hours and stated:

The FAA agrees with the overwhelming number of commenters who stated that a ten-hour flight-time limit is not justified by current scientific data. A series of studies examining the national accident rate has shown that ten hours spent at work pose a much greater risk of an accident than eight or nine hours spent at work.

It is important to note that these maximum FDPs are tightly controlled in other jurisdictions. For example, while EASA allows 14-hour FDPs as an operational extension to a duty, the other limitations it has in place mean that a pilot regularly performing these maximum duties would only be flying an average of seven days a month.

In Australia, a pattern of very long duties followed by a shorter duty can result in flying a 14-hour duty every three to four days consistently until other limitations finally come into play. Further, the changes to delayed reporting times in the regulations could extend a pilot's time awake far beyond what is considered reasonable or, if we consider the scientific research, safe. For example, the allowable flight duty period for one to two sectors is 13 hours. Given that a pilot would likely need to be awake at least two hours before the start of the FDP and that the reporting time can be delayed for four hours, a pilot could finish that FDP some 19 hours after waking up.

Even worse, the regulations allow an additional sector to be added to the pilot's FDP on top of this, increasing the total time by one hour, with 30 minutes extra at the controls. These extensions can occur in 'unforeseen operational circumstances'. While the regulations obviously need to allow extensions to take place, there should be reasonable limits in place to ensure fatigue is appropriately managed where various stand-alone extensions overlap.

The instrument also does not adequately manage the need for pre-flight rest during standby periods. It is important to note that standby cannot be equated with being off duty or even on a rest period. Being on standby presents its own challenges in relation to fatigue, because the pilot needs to remain sufficiently rested to begin a shift at any time during the standby period. For example, a pilot might be on call from the morning to the evening and end up beginning a duty just when they would be preparing to sleep in a normal situation. Anticipatory stress can also impact on sleep and rest. I believe that has not been incorporated in these regulations to any sufficient degree at all.

This part of the regulations is based purely on regulatory experience, so-called, rather than science. It is the old 'because we say so' argument again. For example, in a worst-case scenario a pilot could be on standby for 12 hours before being called out for a 14-hour duty. That duty could then be extended by an hour due to 'unforeseen operational circumstances'. That would mean the pilot would finally finish their FDP 27 hours after they first prepared to fly.

In 2007, CASA, Qantas, AIPA and the University of South Australia undertook comprehensive research into pilot fatigue. The report contributed significantly to the understanding of this issue in Australia, but its findings and research seem to have been largely ignored in the shaping of these regulations. That is extraordinary—you do not ignore compelling evidence like that. In particular the information in the report indicated that FDPs and rest facilities for augmented crews needed further refinement, which is something the regulations do not address.

The regulations regarding consultation through the fatigue safety action groups are also a concern. While the regulations account for consultation with all stakeholders when operators develop their own fatigue risk management system, there is no requirement for consultation through this process where operators choose to work according to the base regulations. This consultation process is vitally important and should be specifically mandated in the regulations. Further, the regulations should also contain a specific dispute resolution process. There are significant industry concerns about CASA's regulatory enforcement in other areas, and a mandated process would go some way towards addressing any potential issues in this area.

Essentially, while there are improvements in these regulations, we must take this opportunity to address these valid points, based on evidence, as a matter of urgency. Australia has always been considered a world leader in aviation safety, and we should seek to uphold that reputation. Scientific research can provide us with far greater insights into fatigue risks and management than ever before. There are areas of these regulations that are far behind that research and, to put it bluntly, pose a safety risk. Safety regulations should be constantly evolving in line with research and technological developments. They should not be static, as Australia's fatigue regulations have largely been for over 60 years. My reason for moving to disallow this instrument is that, if we consider the history of aviation safety regulations in Australia, we are unlikely to get a further update to these areas of concern any time soon. It may take many years.

If it has taken us 60 years to get to this point, we cannot put our trust in a short-term or even a medium-term fix. The largest group of airline pilots in Australia, AIPA, has suggested that we form an independent scientific panel to review the instrument. They have committed to accepting the panel's findings. I fully support this review prior to finalisation of these regulations. This is our chance to maintain Australia's reputation and to reclaim our position as world leader. When it comes to a dispute between the regulator or the pilots, I really have to side with the pilots. This is also our chance to save lives, and that alone should be reason to support this motion.