Mark Arbib (NSW, Australian Labor Party, Parliamentary Secretary for Government Service Delivery) Share this | Link to 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.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

It is important to say at this early stage that the coalition will be supporting both the Civil Aviation Amendment Bill 2009 and the Transport Safety Investigation Amendment Bill 2009. The Civil Aviation Amendment Bill amends the Civil Aviation Act to create a board for Australia’s civil air regulator, the Civil Aviation Safety Authority, which is referred to by anyone who has any involvement with them as CASA. The bill also makes some technical amendments to improve its enforcement powers. These include improving CASA’s capacity to oversight the safety of foreign carriers flying to and from Australia, amending the automatic stay arrangements for reviewable decisions and creating an additional offence of negligently carrying or consigning dangerous goods on an aircraft.

Senators will know that CASA is a statutory authority that was established in 1995 with the mandate to regulate Australia’s civil aviation sector to ensure its safe operation. Australia’s record of aviation safety is world class, and there is no doubt that CASA is entitled to take some credit for this admirable performance. Yet in many ways CASA has been a troubled regulator. Its task is not an easy one. It is dealing with a sector that is diverse and characterised by what some might call fractious elements and strong personalities. It has been subject to strident criticism, personality conflicts, industry complaints and any number of reviews over the years.

In addition to the reviews by various government appointed bodies and parliamentary committees, the report of the Queensland State Coroner into the 2005 Lockhart River air crash looked at CASA’s regulatory oversight in the context of that tragedy. CASA is a regulator that has experienced significant change, which has mainly arisen out of the decision by the previous coalition government to abolish the board in 2003. That decision placed the federal minister in more direct control of CASA. Following the passage of that legislation, CASA embarked on a prolonged period of reform. I might add that the Labor Party and most elements of the aviation industry supported the decision of the coalition government to abolish the board of CASA. In fact, the member for Batman, in his then capacity as shadow transport minister, said on 19 November:

For too long in terms of CASA we have had a board in place which was a bureaucratic layer that contributed nothing. In many ways we had a lot of do-gooders without a lot of aviation experience. Abolishing the CASA board effectively means that CASA is more accountable for aviation safety, so we all appreciate that the buck stops and starts with the minister.

I might say that in those wonderful days I was a minister in the government, representing in the Senate the then Minister for Transport and Regional Services. It was my lot to sit through estimates committees that seemed to go on and on and on so far as CASA was concerned. Senator O’Brien, who is not in the chamber, was one of the reasons why those committees went on and on. But there were always plenty of grounds for Senator O’Brien to question CASA.

As I mentioned earlier, CASA was an unusual organisation. It attracted a lot of criticism which, to my way of thinking, was never actually answered by CASA but was referred to the minister at the time, Mr John Anderson. I remember saying to Mr Anderson at one stage: ‘Whenever there is any problem with CASA the blame goes to you. You’re called upon to deal with it. You’re criticised for it and yet effectively you have no control over it. There is an independent board there.’ Because of the way CASA was operating at the time, there was a lot of complaint and criticism and it all ended up on Mr Anderson’s desk when he really had no ability to do much about it. So I said to him: ‘If you’re going to take the blame, you might as well run the show. At least then when the blame is directed it is properly directed.’ As I mentioned, the Labor Party agreed with that, and most of the aviation industry did as well. So we abolished the board. I think that since then it has all worked very well. There has been a lot of reform. Congratulations to all subsequent transport ministers for doing that and taking it further.

But the time has come, the coalition believes, to look at a board situation again. The whole situation is different. CASA is now operating in a much better way. I agree with the government that it is probably time to reintroduce the concept of a small, expert board of five members appointed by the minister. We agree with that. The government argues that CASA is a far different organisation from what it was back in 2003—we certainly agree with that—and, according to the government, CASA is therefore now ready for a board.

Whilst we do not usually take the assurances of government at face value, particularly regarding something as important as the state of Australia’s civil aviation regulator, I do turn to the findings of the last Senate inquiry into the administration of CASA. That inquiry took some 61 submissions from the aviation sector. It took evidence from a significant number of witnesses, many qualified to make informed observations about the effectiveness of CASA. The Senate inquiry established that CASA, under its Chief Executive Officer, Mr Bruce Byron, has made progress in its way of doing business. It has remodelled its structure to be more responsive to the industry and has made an effort to change its defensive culture. At the working level, some submissions noted this improved approach. CASA has also attempted to change its arrangements to enhance its approach to engaging with industry.

Nevertheless, the Senate inquiry expressed concern that some in the sector felt that CASA’s senior executives were not approachable enough. Some submissions expressed unease that CASA’s risk based safety philosophy was at the expense of a more prescriptive regulatory approach and that leaves too much responsibility with the airlines to ensure their own safety standards.

CASA has had an enormous staff turnover since 2003. Whilst that is characteristic of an organisation trying to change its culture and its way of doing business, the Senate inquiry did note that CASA appears to lack adequately trained technical staff and seems to lack a clear path for managing its training needs.

The Senate committee noted some good things and some bad things about the way CASA was operating. So, clearly, CASA faced a number of challenges. I note that the majority submission to the Senate inquiry, in contrast to what occurred prior to 2003, argued for reinstatement of the CASA board. Qantas suggested that the current governance structures are not delivering consistent policy and that the responsibilities of the CEO are too broad. That point was supported by the Australian and International Pilots Association, which stated that a board would improve the capacity of the CEO to make the tough decisions needed to regulate the industry. The Aircraft Owners and Pilots Association argued that a board would help CASA implement safety guidelines. So there was a lot of information there, and I think that has helped the parliament to come to its conclusion on the reintroduction of the board.

Can I say in passing that it is the belief of our shadow minister, and I am sure most senators, that the CEO, Mr Bruce Byron, made an outstanding contribution as CASA’s boss over the past five years. His was a thankless and difficult task yet he made significant progress in placing CASA on the path to being a world-class regulator that can work with the industry in a rigorous, responsive and effective way. He was well regarded across the sector, an honour that I might say is achieved by few in the aviation business. Indeed, the shadow minister quite rightly says that the job is not completed, but certainly Mr Byron has made a very creditable contribution and CASA is better than it has ever been. We on this side certainly wish Mr Byron good health and happiness. We also want to welcome Mr John McCormick, the new CEO of CASA. His extensive background in aviation will serve him well as he continues the challenges of regulating a key industry.

The bill improves the enforcement powers of CASA. One such change is improving CASA’s oversight of foreign carriers. This bill inserts a new section in the Civil Aviation Act to enable CASA to consider the effectiveness of air operators and relevant foreign regulatory authorities when assessing applications authorising the operation of foreign registered aircraft flying to Australia. This is consistent with what occurs in Europe and the United States and it does seem to us to be a sensible way to improve aviation safety, because it is a regrettable truth that some foreign regulatory authorities are not as rigorous as ours. So that amendment has the support of the opposition.

The second significant technical change contained in the bill is to amend the automatic stay provisions of any decision by CASA to suspend, change or cancel various types of certificates and permissions in circumstances short of ‘serious and imminent risk to air safety’. I will not go through that provision in detail—it will be in the second reading speech—but suffice to say that it is shortening the stay provisions of the bill for people served with a show-cause notice who in the past could apply to the Administrative Appeals Tribunal for more than a 90-day suspension of the cancellation of the licence, and this amendment deals with that by shortening the time allowed for conducting further investigations into the reason for the show-cause notice. As I mentioned, the coalition will be supporting that aspect of the package before us in the Civil Aviation Amendment Bill 2009.

In relation to Transport Safety Investigation Amendment Bill 2009, this is designed to enhance the independence of the Australian Transport Safety Bureau, which I will refer to by its common acronym, ATSB. It enhances the independence of the ATSB and the safety of Australian transport. I think the ATSB is well regarded in Australian transport. It is staffed with people of considerable experience. It was created in 1999 by the then coalition government and its creation was part of a push to separate the responsibilities involving maintaining transport safety apparatus with those of ensuring that safety investigations were carried out by a body that was independent.

Transport in Australia has an enviable safety record and this is due in no small part to the vigilance of the industry participants and the regulatory and investigative regimes. A review of the relationship between CASA and the ATSB was conducted by Mr Russell Miller AM back in 2007. This review came in response to concerns raised during the investigation of the Lockhart River air crash and it was designed to identify potential improvements to Australia’s safety regime.

The review reported that the Transport Safety Investigation Act provides that the executive director is not subject to directions from the minister or secretary in respect of the exercise of executive director’s powers under the act. It further went on to say that the powers of the executive director and departmental officers assigned to the ATSB are effectively autonomous, not only in relation to the undertaking of investigations and the resultant reports but also in relation to the broader range of powers and responsibilities under the act.

Given all that, it seems clear that the ATSB is seen as being autonomous in the execution of its duties. At the same time, despite the autonomy granted to and exercised by the ATSB, it does remain a division of the department. As a result, the theoretical possibility remains for that independence to be compromised in the future. Among the recommendations of the Miller review was a proposal that an alternate governance of the ATSB would move it out of the minister’s portfolio and enhance its administrative independence. This bill is a result of some of the recommendations contained in the Miller review and it will establish the ATSB as a statutory authority in its own right rather than keeping it as a division of the department. This will make the ATSB visibly separate from the department. Aside from being more independent on an organisational level, becoming a statutory authority will mean that ATSB will have direct control of its own budget and its own personnel matters under the Financial Management and Accountability Act. The bill provides for that new structure.

Under the legislation, the internal structure of the ATSB will be that of a commission headed by one full-time chief commissioner, who will also be the CEO of the agency and whose role will be analogous to that of the current executive director. The chief commissioner will be supported by two part-time commissioners with the prospect of more commissioners being appointed should the need arise. All appointees will be required to have a high level of expertise in some area relevant to the ATSB’s function.

The minister, as I understand it, will appoint the commissioners. We on this side would of course urge, and will be ensuring, that those appointed are appropriate to the job and are independent. The bill gives the ATSB the capacity to delegate its powers under the act. It also authorises the ATSB to require individuals, organisations and government agencies to provide written responses within 90 days.

We need a robust transport sector in Australia. Aviation, road, rail and maritime transport have all done a great deal to contribute to the economic and social development of Australia. They continue to play an important role, especially in regional areas, in bringing Australians together and reducing the tyranny of distance and isolation. The coalition believes that this bill will enhance the transport safety regime that has been steadily built up over the years by all governments, going back a long time. For those reasons, the coalition is happy to support the two bills before us.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Before I go to the legislation before us, I would like to follow on from Senator Macdonald’s remarks about the inquiry the Senate Standing Committee on Rural and Regional Affairs and Transport conducted last year and make a couple of statements in relation to the tragic accident up at Lockhart River when 15 lives were taken. As chair of that committee, I sat through the hearings and heard the presentations from the witnesses. It gives me some comfort to think that, following that inquiry and also the Australian Story program last week, Mr Shane Urquhart—who lost his daughter, Constable Sally Urquhart, in that accident—will be able to find some form of closure. I would like to wish Mr Urquhart and his family all the very best.

I am speaking in support of the Civil Aviation Amendment Bill 2009 and the Transport Safety Investigation Amendment Bill 2009, but I intend to concentrate my remarks on the Civil Aviation Amendment Bill 2009. I think it is fair to say that Australia can rightly claim to be amongst the world’s leaders in aviation safety. However, this does not mean that the government can relax on ensuring that the agencies charged by government and required by legislation continue to maintain Australia’s aviation safety regime at the highest levels of world best practice. The measures contained in the Civil Aviation Amendment Bill 2009 are about ensuring that Australia continues to have a civil aviation safety regulatory and surveillance regime that is second to none.

Australia was an early starter in the race to take up the opportunities of civil aviation in the early part of the 20th century. Australia had more than its fair share of intrepid pioneer aviators who pointed the way to the tremendous advantages that plane travel had to offer to Australia, with its vast distances and at a time when its economic growth depended so much on its pastoral industries scattered across the continent. Later aviation would have an even greater role in the development of Australia’s rich mineral resources—not least in that fantastic state of Western Australia, to name one. For a state as large as Western Australia, the development of air travel, right from the early days of civil aviation, played an important role in opening up the state’s economic development, particularly in the remote and rugged northern regions of the Pilbara and the Kimberley.

It was therefore not simply by chance that Western Australia led the way in the introduction of regular scheduled air services. In August 1921 Western Australian Airways, founded by Norman Brearley, was awarded a federal government contract to operate a weekly airmail and passenger service between those two great towns of Geraldton and Broome. As a result, Australia’s first scheduled air service commenced in Western Australia on 5 December 1921, from Geraldton to Port Hedland. Unfortunately, one of the aircraft on this first service crashed when making an emergency landing on route to Port Hedland, and the pilot and passenger were killed.

Right from the start of regular airline passenger services, safety was a prominent issue. The cause of the crash was believed to have been partly due to the poor state of the landing field. Western Australian Airways suspended the service until the then Civil Aviation Branch of the Department of Defence took action to ensure adequate landing fields along the route. The issue appeared to have arisen because of tardiness on the part of Canberra—that has a ring about it over the years—to allocate sufficient funds to prepare the required landing fields. The incident drew severe criticism from the Western Australian public and the problem was rectified. This is an early example of why Western Australia’s cynicism about its treatment by Canberra erupts from time to time. It is a feeling that has a very long history.

Regular flights between Geraldton and Port Hedland recommenced on 21 February 1921 and were extended to Derby via Broome in March the same year. The total flight time from Geraldton to Derby, a distance of approximately 2,000 kilometres, was 2½ days. When I came off the road as an burnt-out truck driver we used to drive it quicker than that!

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

That was within the speed limit, of course!

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Within the speed limit, Senator Macdonald, and within the fatigue management regime, which in Western Australia was a case of everything was legal and you just kept going. Fortunately, that has now changed.

Qantas’s first scheduled flight, which went from Longreach to Cloncurry in Queensland, did not commence until November 1922. Air passenger transport in Australia has obviously come a long way since 1921. However, one thing that has not changed is the pre-eminence of the requirement to maintain the highest possible safety standards. By early 1921 the federal government had already established regulations with regard to aeroplanes, pilots, mechanics, aerodromes and flying practices. This was made possible by the passing of the Air Navigation Act 1920, regulating civil aviation in Australia, on 11 November 1920 by the Commonwealth parliament. It is interesting to note that this action by the Commonwealth parliament was possible as a result of Australia’s agreement to the 1919 Paris convention which, as a consequence, enabled the Commonwealth to use the external affairs power to regulate civil aviation.

The Paris convention of 1919 defined the status of international airspace and gave authority to the commander of an aircraft to act in accordance with the law of the state of registration. Hence, we see very early in the history of civil aviation that its regulation had become a national issue. The Australian community very early decided that the federal government should be accountable for civil aviation safety standards and their enforcement.

The Rudd Labor government takes this aviation safety commitment extremely seriously and it is the government’s primary objective when it comes to air travel. As stated in the government’s 2008 national aviation policy green paper, safety must underpin everything else in aviation and must be maintained in the face of costs and other pressures in the industry. The safety of passenger-carrying operations remains the top priority.

In Australia three agencies are involved in ensuring aviation safety: the Civil Aviation Safety Authority, which we term as CASA; the Australian Transport Safety Bureau, ATSB; and, of course, Airservices Australia. CASA is an independent statutory authority established in 1995 under the Civil Aviation Act 1988 to regulate aviation safety in Australia and the safety of Australian aircraft overseas. Its primary role is safety regulation of civil aviation. CASA’s regulatory responsibilities include overseeing the activities of over 42,000 licensed industry personnel including pilots, licensed aircraft maintenance engineers and air traffic controllers, and over 13,000 registered aircraft. CASA also provides safety education and training programs and in recent years has acquired responsibilities for airspace regulation and some environmental issues. CASA has a staff of over 600 people. The chief executive officer also holds the statutory position of Director of Aviation Safety. It is to be acknowledged that CASA has a large and complicated role, being required to work constructively day to day with the industry it regulates but also needing to take firm regulatory action against industry when necessary to ensure safety.

The Australian Transport Safety Bureau is responsible for the independent investigation of accidents and incidents involving civil aircraft in Australia. All accidents and incidents related to flight safety in Australia or by Australian registered aircraft overseas must be reported to the ATSB. Airservices Australia provides air traffic control management over an area that covers 11 per cent of the earth’s surface, which includes international airspace over the Pacific and Indian oceans. Australia is recognised as having one of the safest and most efficient air traffic management systems in the world, and that is something that we should be very, very proud of. Airservices Australia also provides aviation rescue and firefighting services at 19 of Australia’s busiest airports. In 2008 Airservices Australia received the 34th annual Aviation Technology Achievement Award. The Airline Industry Achievement Awards are considered to be the ‘Oscars’ of the international airline industry.

The effective function of Australia’s aviation safety regime depends on close working relations between these three agencies. This is assisted by formal memorandums of understanding between the Civil Aviation Safety Authority and the Australian Transport Safety Bureau, and between ATSB and Airservices Australia. As well, Australia is a member of the Council of the International Civil Aviation Organisation, known as ICAO, which is made up of no fewer than 190 states or countries, and has frequently assisted with international investigations.

Even though the number of aviation accidents and aviation fatalities in Australia is very low, there is still on average, sadly, one aviation fatality every 10 days. Also while aviation passenger transport in Australia has a safety record amongst the best in the world, fatal crashes occur of aircraft engaged in passenger transport almost every year. In 2005 a low-capacity aircraft on a scheduled passenger flight in North Queensland crashed killing 13 passengers and two crew—which I mentioned earlier and which we refer to as the Lockhart River accident. Over the past 11 years there has only been one year when there has not been a fatal crash of a charter passenger aircraft. In 2008 there were three fatal charter passenger aircraft crashes, killing six people—and the more I read on, the less I want to fly. But, as I say, we have the best safety record and we should be proud of it. But it can always get better. In this regard, I am reminded of the thousands of people who work in the mining towns in the north and east of Western Australia and who rely on chartered aircraft to get them to and from work regularly throughout the year. They are the ones referred to as the ‘fly-in fly-out’ people.

ATSB statistics show that issues affecting aviation safety are a daily occurrence. In 2008 there were over 8,000 safety issue occurrences reported to the Australian Transport Safety Bureau. The number of occurrences reported to the bureau has increased substantially over the past 10 years. This is not in itself necessarily an indicator of declining safety standards. In fact it could equally be an indicator of improved awareness of potential safety issues that need to be looked into. However, it is also relevant to note that there were 180 aviation accidents in 2008. This was the highest number of aircraft accidents since 2001. It is not a proud record. In addition there were 64 serious incidents in 2008 on top of the 180 accidents. This was substantially higher than the previous year and substantially higher than the annual average of the previous five years. The fact is that there has been an almost 45 per cent increase in the number of annually reported aviation safety occurrences over the past 10 years. Alongside that is the fact that the total number of accidents and serious incidents reported in 2008 was 26 per cent higher than the number reported in 2007 and almost double the number reported in 2006. These are not trends we would want to see continue. These are the sorts of figures that concern me as Chair of the Senate Standing Committee on Rural and Regional Affairs and Transport, as I am sure they do other members of the committee, none more so than my esteemed colleague who is in the chamber, Senator O’Brien, with his long history with this committee.

Equally of concern were some of the findings of the ATSB with regard to the Lockhart River accident in 2005. In its investigation ATSB found that CASA processes were contributory factors in the cause of the accident. Firstly, the ATSB found:

CASA did not provide sufficient guidance to its inspectors to enable them to effectively and consistently evaluate several key aspects of operator management systems.

Secondly:

CASA did not require operators to conduct structured and/or comprehensive risk assessments, or conduct such assessments itself, when evaluating applications for the initial issue or subsequent variation of an Air Operators Certificate.

By any reckoning these are serious findings, though I should also say that CASA has contested these contributory factor findings by ATSB. We are left, therefore, to draw our own conclusions. But it is also interesting to note that CASA has instituted changes to its processes and inspectorial staff since the Lockhart River accident. The fact is that issues concerning CASA’s processes that had possible aviation safety regime implications were not new in 2005 at the time of the Lockhart River accident.

For years previously, and right up to the present time, there have been recurring themes with respect to CASA. There has been a cycle of externally initiated reviews of CASA’s processes because of broadly based and persistent disquiet about CASA’s performance. Despite various initiatives by CASA to improve its systems and procedures, an ongoing pattern of problems seem to suggest fairly deep-seated difficulties within the agency have reduced its capacity to undertake effective long-lasting reform. It has been noticeable that, very often when a particular problem is raised with CASA management, the immediate response is that CASA is already aware of the matter and action to rectify has been completed or is well advanced. Nonetheless, within a relatively short period other concerns with CASA’s processes reappear. For example, the CASA performance audit conducted by the Australian National Audit Office in 1999 found in regard to CASA’s regulatory regime:

… the potential exists for this regime to be improved and strengthened with consequential increased confidence of all stakeholders.

Then in 2002 ANAO’s follow-up review on progress since its 1999 performance audit reported:

The safety systems approach and CASA’s system-based auditing, when fully implemented, will enable CASA to better monitor operators’ compliance with the Act and Civil Aviation Regulations. However, considerable work remains to be done to refine their implementation, otherwise there is a risk that CASA’s agenda of aviation safety reform may falter.

Five years on in 2008 the Senate Standing Committee on Rural and Regional Affairs and Transport, having become so concerned and dissatisfied with the quality of many of CASA’s responses to the committee’s requests for information about the performance of the agency, initiated an inquiry into the administration of the Civil Aviation Safety Authority and other matters. The Senate committee’s inquiry report had this to say:

… the committee notes that one of the recurring themes in the evidence received during this inquiry is that CASA is aware of the problems raised and has initiated steps to address them. Without wanting to appear unduly cynical, this is a response that this committee is all too familiar with, particularly through its Senate estimates hearings.

The Senate committee inquiry confirmed that there is still significant scope to improve CASA’s processes as well as the need to bring the regulatory reform program to a conclusion as quickly as possible to provide certainty to industry and to ensure CASA and industry are ready to address future safety challenges.

The outcome of the inquiry vindicated the concerns of the Senate committee and reinforced the need for government to take action to improve the governance of the authority. It is very important nonetheless to stress that the problems identified by the Senate committee should not be interpreted as a denigration of the organisation as a whole. Australia’s excellent aviation safety record is in no small part due to the excellence of the work and professionalism of the individual men and women who work on the front line of CASA’s services.

This bill will create a five-member CASA board, one of whom will be appointed chair of the board. The CASA director of aviation safety will be an ex-officio member of the board. It is intended that the board be an expert board and will not be a board representing sectional interests. The board and its members will be required to provide CASA with the governance that will ensure that the functions of CASA are totally directed to overall safety of the Australian community.

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 CASA complies with certain directions given by the minister. As is appropriate for a board of governance, the board will not be directly involved in the day-to-day running activities of the authority. Board members will be appointed for terms of three years.

In 2003 when the decision was taken to abolish the CASA board it was done no doubt with all good intentions and may have seemed the most appropriate way to go at that time. However, experience since then and the changed circumstances in the aviation sector have reinforced the need to provide CASA with much greater strength and depth with respect to its strategic oversight of aviation safety and with respect to the governance of CASA itself. On that, I commend both the bills to the Senate.

Kerry O'Brien (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

It was not my intention to speak in this debate on the Civil Aviation Amendment Bill 2009 and the Transport Safety Investigation Amendment Bill 2009, but I understand there is a message on its way with regard to another piece of legislation so I thought I would take the opportunity to make a couple of remarks following on from the comments of Senator Sterle, the excellent Chair of the Senate Standing Committee on Rural and Regional Affairs and Transport. This legislation is remedying the unsuccessful experiment which the previous government initiated in removing a board from the Civil Aviation Safety Authority—given the previous membership of the board and its relationship with the previous head of CASA, Mr Toller, probably coloured the views of everyone, but particularly those of the previous government, about the desirability of having a board.

The experience of CASA’s operation under the previous chief executive, Mr Byron, has shown that the experiment was not successful and the examination of the operations of CASA and experiences arising from, amongst other things, the Lockhart River tragedy, lead me, and indeed I believe the government, to the view that (a) it was a failed experiment and (b) it was time to make a number of changes in relation to the civil aviation safety regime over which this government presides.

So we see the re-creation of a board of the Civil Aviation Safety Authority and we see greater independence for the Australian Transport Safety Bureau. I think both of those measures are long overdue. Anyone who saw the program Australian Story last Monday and saw the depiction of events around that tragedy and the views of Mr Shane Urquhart, the father of the young woman who died in that tragedy, would not have failed to have had concerns about the performance of CASA in relation to that tragedy. I asked a number of questions of CASA at Senate estimates arising from coronial comments about CASA’s aggressive defence of their position and aggressive pursuit of the ATSB in that coronial inquiry. I resile from no question or comment I made in those proceedings. It is clear to me that CASA was more about protecting CASA than ensuring that the coronial inquiry arrived at the truth and, indeed, I believe that in many respects CASA was leniently dealt with by the coroner in that case. The ATSB usually but not always gets it right, and it is appropriate for CASA to defend itself, but there is a proper way for an organisation with the authority of this parliament to perform in coronial inquiries, and in that case I think the coroner believed, and I believe, that they overstepped the mark.

From time to time we will continue to pursue the Civil Aviation Safety Authority and the Australian Transport Safety Bureau and their successors because, ultimately, this parliament is the custodian of aviation safety. Those bodies are established by this parliament. They are given a charter by this parliament to protect the Australian travelling public. Ultimately, if there is a deficiency in their performance, the public expects this parliament to expose it, and that is a matter which I consider to be beyond politics. Everyone in this chamber has a vested interest because they regularly travel with chartered and regular public transport aviation services in the performance of their duties, and so do many staff.

One of the victims of the Lockhart River tragedy was an officer of AQIS, I believe, who on a number of occasions appeared before Senate inquiries giving evidence. He lost his life in that incident completely unfairly, simply in the performance of his duties because he was unfortunate enough to be in an aircraft which was being flown without proper regard to appropriate safety circumstances, without properly trained officers on board and by an airline now no longer operating but with a history of poor performance and practices in this country and elsewhere.

So we do have that responsibility and it is a responsibility that many from both sides of this chamber take seriously, and I would expect that that would continue. There have been royal commissions and commissions of inquiry into aviation disasters in the past. The Seaview inquiry, for example, was referred to in our most recent Senate inquiry into the Civil Aviation Safety Authority. The commission of inquiry made it very clear that there needed to be a separation between the interests of the safety watchdog, currently the Civil Aviation Safety Authority, and industry and that too close a connection between those bodies was not in the interest of aviation safety. That has also been the finding of a recent inquiry of the United States congress into their own regulator, the FAA. There was also an inquiry in the Canadian jurisdiction about their regulator in which similar findings were made.

It is clear that there have been trends towards inappropriate closeness between the regulator and aviation interests, and I hope that the lessons of the findings of our committee, the FAA and the commission in Canada are heeded and not dismissed, as I fear they may have been by the previous administration of the Civil Aviation Safety Authority. I would recommend to the new board, when it is appointed, that it acquaint itself with some of those findings and look at decisions of the executive of that organisation—not that I make any reflection on the new executive—with an eye to the principles that have been espoused in royal commissions in this country, by the Senate Rural and Regional Affairs and Transport Committee, by the United States congress and others around the world about the danger of closeness between the regulator and those it administers.

Further independence by the ATSB is also a good thing, but I would expect that this parliament would take very seriously its responsibility to ensure that the ATSB also continues to perform the important service that it does in safety investigation and recommendations—in other words, that it be the one that keeps us all honest in relation to aviation safety in this country. But, ultimately, it is this parliament that is the final point of scrutiny, and I believe this parliament is up to the responsibility that it is charged with.

I believe we should support this legislation, and I understand that it will be supported. This legislation will allow aviation safety in this country to be improved and for a level of administration of Australian aviation to take a step into what will probably be an important phase, given all of the challenges. Whether fuel prices are high or fuel prices are low, it is said that there are challenges and that airlines are going to fall over. If airlines are going to fail for financial reasons, then that is the time when corners are likely to be cut and, when corners are likely to be cut, safety is at risk and we need to be ever more vigilant.

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

I thank Senator Macdonald, Senator Sterle and Senator O’Brien for their contributions and comments on the bills. I also thank the work of the Minister for Infrastructure, Transport, Regional Development and Local Government and the minister’s office. The Civil Aviation Amendment Bill 2009 and the Transport Safety Investigation Amendment Bill 2009 will strengthen Australia’s aviation safety regime and honour a pledge that the minister made when releasing the government’s aviation green paper late last year.

The Civil Aviation Safety Authority will have its governance enhanced by the creation of an expert board to provide high-level direction to the organisation’s regulatory and safety oversight role. The Civil Aviation Amendment Bill will also make changes to improve CASA’s oversight of foreign carriers flying into Australia. The bill strengthens the provisions for preventing operators from continuing to operate services where CASA considers it unsafe for them to continue. Finally, it closes a gap in the current legislation by introducing an additional offence of negligently carrying or consigning dangerous goods on an aircraft. The Transport Safety Investigation Amendment Bill reinforces the ATSB’s independent status by establishing it as a separate statutory agency with a full-time chief commissioner and two part-time commissioners. It also gives the ATSB new powers to compel agencies and operators within the aviation industry to respond to its formal recommendation within 90 days. The amendments in these two bills strengthen public confidence in the safety and reliability of air travel.

Question agreed to.

Bills read a second time.