Nick Xenophon (SA, Independent) Share this | Link to 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.

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

I, on behalf of the coalition, want to indicate to the Senate that the coalition will be supporting the disallowance motion, as we have done twice in the past. We do it for the reasons which Senator Xenophon has very clearly and precisely put. One wonders why the government continues to regale the Senate with these regulations. This is at least the second, and I suspect the third, time that they have been brought back in much the same form on each occasion, and on each occasion we have indicated at some length that the opposition does not support the strict liability element on pilots—that is, making it a strict liability offence for pilots if someone else happens to open the door. I know that the shadow minister, Mr Truss, has had a number of discussions with the minister or his staff and has tried to negotiate a way through this. We have been given some verbal assurances—that really do not go far enough, in any case—but nothing in writing.

It is indicative of the sheer arrogance of this government that they are bringing these regulations back in the same form as they have before. It is the same arrogance that has led this government to introduce a huge mining tax on Australian industry, a tax which will destroy the jobs in my state of Queensland and Western Australia in particular. There was no consultation with the mining companies. Mr Rudd looked at the polls, realised he had to do something dramatic and so brought in this tax without any understanding of it and without any consultation. It was certainly not on the recommendation of Mr Henry. Mr Henry has subsequently said, again I say with some respect, that it is a tax that should be repeated across other industries in Australia, and that must start the alarm bells ringing.

This arrogance is also clear from the way the government simply paid Telstra whatever they asked for to get the NBN through. And why? Not because the NBN had proved its worth. Not because there had ever been any cost-benefit analysis done, but because Mr Rudd noticed the opinion polls and needed something to distract attention from them. Many commentators are saying today, and I particularly refer to Terry McCrann, that Telstra are laughing all the way to the bank. They got more out of Mr Rudd on the NBN proposal than they ever might have expected. And why? Simply because Mr Rudd was going downhill in the polls and needed some sort of a circuit breaker.

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

Senator Sterle interjecting—

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

We know, Senator Sterle, that Mr Rudd is about to do yet another backflip on the great big new mining tax. Deny to me, Senator Sterle, that in the very near future we will hear of some negotiations with the gas industry, which Mr Rudd will hold up as the success of this whole enterprise. He and everybody who drills down into it will know that there is nothing in it for the gas people—and he will also know that the miners will not be part of it. I am currently speculating, of course—unless the announcement has been made in the—

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

Senator Sterle interjecting—

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Order! Senator Macdonald, please resume your seat. Senator Sterle, interjecting is disorderly and I ask you to refrain.

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

Thank you for protecting me, Madam Acting Deputy President. I know that Senator Sterle is very concerned about this, coming from Western Australia as he does. He can read the polls. On the last poll in Western Australia there would not be a Labor Party member left in Western Australia. If Senator Sterle is unfortunate enough to be on the Senate ticket this time, he might not even get there. We have two Western Australian senators in the chamber—Senator Sterle and Senator Evans—defending the great big new tax on mining that will destroy Western Australia. We all know that Mr Rudd will do one of his famous backflips and try and pretend that he has solved the issue. But everyone will be able to see through that and understand that Mr Rudd has again thought more of his own personal political future than the country’s future.

The motion before the chamber is related to airline safety. I come from Northern Queensland where air safety is particularly important. In Cape York we use small aeroplanes and large aeroplanes all the time. The impact of safety regulations on those of us who live in the remoter parts of Australia is always important—as is the Queensland Labor government’s awful wild rivers legislation, which this Senate is trying to overturn with a private member’s bill that is before the chamber at the moment. I had desperately hoped that I, Senator Barnett, Senator Boswell and others would have been able to talk to a report that was tabled that clearly shows just how awful that wild rivers legislation is for the Indigenous people living in Cape York. Unfortunately, we were prevented from talking to that report before the Senate, but that does not in any way stop the very good dissenting report by the coalition senators, drafted by Senator Guy Barnett, that clearly shows that the interests of the Indigenous people in Cape York are severely and badly impacted upon by the Queensland government’s wild rivers legislation. Hopefully later tonight we will have the opportunity of discussing in this chamber, albeit very briefly, that overturned wild rivers bill. And hopefully we will pass a bill which will effectively overturn the Queensland government’s wild rivers legislation which is so destructive to Indigenous people—providing, of course, that it is passed by the other place.

The people of Cape York have a difficult time now with small aircraft around—and we have to use them. The people who live in Cape York deserve every opportunity to get ahead. But what is the Labor Party in Queensland doing? It is preventing these people from the proper, adequate and free use of their own land. Through its declaration on wild rivers in Cape York the Queensland Labor government has simply locked up rivers and made it impossible for Indigenous people to get full value from their land. This deprives them of the opportunity for wealth and full-time work, and the dignity that goes with that, and condemns them yet again to a life of welfare dependency. This is something that their leaders are desperately trying to get them out of but they find it impossible.

I only mention Cape York in relation to the motion before the chamber, which deals with aircraft matters. I am conscious that we have to finish with the disallowance motion by 6.50 pm. I guess that Senator Milne might like to speak on this motion and that someone from the government might like to speak on it, and I know that Senator Back is very interested in a making a brief contribution as well. But let me quickly reiterate why the coalition will be supporting Senator Xenophon’s disallowance motion. There was never any genuine consultation with the group that looks after the airline pilots. That is typical of this government—no effective consultation whatsoever.

I have mentioned that the coalition was very concerned about the strict liability issues of the proposed legislation. These new regulations do not address the concerns that were expressed by the coalition previously and, as I have mentioned, they differ little from the previous regulations. The only significant difference is that they have deleted an employee of the aircraft operator from the list of people able to enter the cockpit. Hence, the new regulation makes the class of persons able to enter the flight deck even more limited. The coalition has always had concerns that it is sometimes in the interests of safety of the aircraft and all on board if an off-duty pilot is able to sit in the jump seat. The government has said to us that they have addressed some of those issues; but, if they have addressed them, why not amend the regulations to make absolutely clear the issues they were talking to us about?

There are some other, almost cosmetic, differences to the regulations, which are referred to in the explanatory statement, but again they do not address the real issue. It would have been so easy for the government to fix this matter, and had they done it properly I am quite sure that neither Senator Xenophon nor the coalition would have been moving to disallow this regulation. Mr Albanese will be going wild in the other place tomorrow, accusing the coalition and Senator Xenophon of not having any regard for aeroplane safety. We expect that from Mr Albanese. He is well known for his over-the-top hyperbole. The actual situation here is that if this is a problem it could easily have been fixed by the government negotiating with the pilots and talking more seriously with the opposition. We retain our concerns about the inability of other pilots to use the jump seat. Evidence, experience and example show that a third pilot in the jump seat has on occasions been a particular boost to airline and aircraft safety. The other issue of the strict liability I have briefly referred to.

There are some other things I would have liked to have said, but I am conscious of the time constraints and that others may wish to speak. There are many things I could have said about legal advice given, but again the government has simply drafted clumsy and draconian regulations. It is again an example of an inexperienced government that has not learnt humility nor the fact that good law-making takes place only after thorough and considered consultation. Clumsy, ham-fisted laws are not the way to do business. For those and all the other reasons that I and Senator Xenophon have mentioned, we will be supporting the disallowance of the Aviation Transport Security Amendment Regulations 2010 (No. 1).

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

In the past the Greens have supported Senator Xenophon in disallowance and we will be doing so again. I also sought a briefing on this from the government, to reconsider the matter, and I too find it very disturbing that the Australian and International Pilots Association oppose this particular change. These are the people who fly constantly. These are the people who put their own lives on the line every day as they take to the air. I am sure that if they thought there was a loophole in safety they would be in here clamouring to have it fixed.

The main issue that the pilots are most concerned about is the exclusion of licensed company pilots from the list of people who can travel on the flight deck of their companies’ aircraft. Admittedly, the airline can be approached to give permission for one of its own pilots to travel in the jump seat, and it was put to me that this is a loophole. A terrorist could train as a pilot, get employed as a company pilot and therefore be able to get access to the cockpit. But if a terrorist trained as a pilot and became a company pilot, why would he or she attempt to hijack the aircraft from the jump seat? Why would they not just do it on a day when they were flying the plane, when they had control and were in charge? Why would they wait until they were in the jump seat? Yes, there is always the risk that somebody might train as a pilot and become licensed to an airline. But they then have access to the cockpit every day that they go to work for that airline, so I cannot see that that actually deals with the issue. More particularly, it goes to the issue of determining the profile of the people you train and employ as pilots in the first place rather than to this regulation.

Another issue is the shift of criminal responsibility from the airlines to the pilot in command in relation to safety breaches, in particular, to the shutting of the door. Again, this comes down to the issue that if the door is not properly shut who is responsible? Should the pilot be criminally responsible for breaches of the safety regulations or should it be the airline? As the Australian and International Pilots Association make very clear it is a long-held international aviation principle that the airline is ultimately responsible for the actions of its pilots. The shifting of criminal responsibility to the pilot in command is, in my view, not the appropriate way to go and could be exploited by an airline to get out of doing what it should be doing in taking responsibility in the event that an incident of some kind occurs.

I am aware, as everybody is, that there are pilots who are travelling backwards and forwards to places—sometimes on duty, sometimes off duty—who use the jump seat. Sometimes you could regard it as a perk of the airline if they are off duty and they are going on holidays or whatever.  But that is an issue for the airline to deal with if a licensed pilot of the airline is using a jump seat as a perk. It is a question for the airline as to how it regards the behaviour of its pilots and whether it is appropriate. In relation to how an airline may manage that particular issue it is not up to governments to determine or to judge what is a perk and what is and what is not allowable.

My focus is entirely on the safety of the aircraft and its passengers, on ensuring that an airline always has to take criminal responsibility for anything that occurs in relation to that airline. I just cannot believe that the Australian and International Pilots Association will not be supporting these regulations if it has real concerns about a loophole for security reasons. I am aware that the government is going ahead with these regulations because it has advice from its security people about loopholes, but I am afraid I just cannot see that these regulations will do anything to address the security issue. I think it goes much further back in terms of whom you are training and whom you are employing as pilots. That is where the real scrutiny is needed—psychological profiles et cetera in relation to that—rather than trying to shift criminal responsibility or trying to take away these long-held aviation principles. That is why I, on behalf of the Greens, take the position that I do.

Cory Bernardi (SA, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition) Share this | Link to this | Hansard source

I recognise that Senator Back wants to make a brief contribution to this debate on Senator Xenophon’s disallowance motion. As he makes his way to the chamber and before he makes that contribution I have to say, in a rare show of solidarity with Senator Milne, that I agree with much of what she has said. There seems to be a great advocate for common sense in this case, because governments have to learn that they cannot micromanage every industry. If any government should heed that lesson it should be the Rudd government. Where they have sought to impose their authority, their will or their wisdom—or lack thereof—on particular industries we have seen disaster after disaster. You can recover from financial incompetence, you can recover from mismanagement of particular industries, but you cannot recover from a catastrophe on an airline. Everyone is interested in protecting the safety and efficiency of pilots, air traffic and air transport in Australia. There is no doubt about that. I believe this chamber and in fact this entire parliament would subscribe to that view. But in doing so we cannot for a moment pretend that the government knows best in these areas. We already place a great deal of faith and trust in our pilots and in our airline maintenance systems and some of that is through regulation but, frankly, the bulk of it is through common sense.

As Senator Milne pointed out, if the intention of these regulations is to protect a potential terrorist from training as a pilot and hijacking a plane, it beggars belief that they will do it to a plane other than the one that they are already in command of. We should listen to the Australian and International Pilots Association which clearly has a vested interest as, frankly, we all have in maintaining safety. But we should also recognise that airlines have a corporate responsibility to uphold their own standards. To shift criminal liability onto a particular pilot when they may just be adhering to traditional customs or to business-as-usual behaviour which historically has provided no real threat to airline safety is, I believe, a step in the wrong direction.

I think I have made my point. Since I have a note that Senator Back is unable to join us, I will cede the time to the government and to Senator Evans for his contribution, but I stand at one with the coalition in supporting Senator Xenophon’s disallowance motion.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

The opposition seems to be confused on this issue. I do not think Senator Macdonald’s contribution will look good in Hansard, given the rather ranting contribution he made to what really should be treated as a much more serious issue. Aviation safety and security is certainly the government’s No. 1 priority and it should be a bipartisan issue. The terrorist attempt on the United States bound flight on Christmas Day last year showed that we cannot afford to be complacent. Australia’s aviation security regime is built upon a number of layers of security measures to ensure that Australia’s aviation industry is safeguarded and able to respond quickly to threats of unlawful interference with aviation.

Hardened cockpit doors and restricting cockpit access are the last lines of defence to stop terrorists taking control of a plane. Stringent rules must apply to who can open the hardened cockpit door and enter the cockpit. Aircraft operators have invested heavily to meet regulations requiring hardened cockpit doors in certain aircraft. As a parliament, we now need to ensure that there is no uncertainty as to who is responsible in different scenarios for ensuring that the cockpit remains secure.

The effectiveness of hardened cockpit doors as a security measure is compromised if there are not clear and consistent regulations governing cockpit access. Put simply, the government takes the view that if a person does not have an operational, safety, security or training reason to be in the cockpit they should not be there. Frankly, if a person does not have an operational reason to be in the cockpit, does not have a safety reason to be in the cockpit, does not have a security reason to be in the cockpit or does not have a training reason to be in the cockpit then why should they be allowed to be in there?

This is an important aviation security matter, and aviation security is an important part of national security. All aircraft operators, including Qantas, Virgin, Tiger and Jetstar should have consistent rules setting out when the cockpit doors should be locked and who can access the cockpit. There have been substantial consultations with pilot associations on this issue. Mr Albanese met personally with representatives of the pilot unions and there have been several meetings between pilot unions and the minister’s department.

The Aviation Transport Security Amendment Regulations 2010 (No. 1) commenced on 21 May 2010. The regulations restrict access to the cockpit to persons who have an operational, safety, security or training need to be there. Under the regulations that decision is made by the aircraft operator; in other words, the airline takes responsibility for determining who is in the cockpit. However, the act and the regulations permit the pilot in command to allow a person into the cockpit for a safety or security reason during flight.

Pilot unions have raised the issue of the potential safety benefits of allowing off-duty pilots and other aviation professionals to utilise the jump seat in the cockpit. We want to be clear about this: the regulations do not impact on the ability of the pilot in command to take whatever action may be necessary and reasonable to protect the safety or security of an aircraft. This may mean, for example, that a passenger who is a doctor, off-duty pilot or engineer is allowed by the pilot in command into the cockpit if there is a safety or security need to do so. Of course, off-duty pilots and other company employees can use the jump seat in the cockpit for repositioning of crew returning home after duty or other operational travel. The regulations mean it is a safe decision for the pilot in command as to whether an off-duty pilot who is travelling for recreation can enter the flight deck. The regulations place responsibility on the pilot in command of the aircraft to ensure that the cockpit door remains locked except for certain allowable circumstances such as to permit authorised persons to enter or leave the cockpit and for safety reasons.

A breach of the regulations is a strict liability offence. Strict liability offences are fairly common and are used where it is necessary to ensure the integrity of a regulatory regime, such as security or public health. Of course, there are many other strict liability offences that apply to pilots. For example, there is a strict liability offence requiring a pilot to comply with an aircraft’s flight manual, and under longstanding regulations a pilot will commit a strict liability offence if they commence a flight while there is outstanding maintenance required on the plane, if they fly an aircraft over a prohibited area or if they tow anything without approval.

These strict liability offences all relate to the operation of the aircraft and their fundamental purpose is to protect the safety and security of the aircraft and its passengers. The responsibility for maintaining the integrity of the cockpit is such a responsibility. If the person who is operationally in charge of the aircraft is not the person who should be operationally responsible for basic measures to protect the security of the flight deck it begs the question: who else could do it? In practical terms there is no other person who would be in a position to exercise control over the cockpit door and the associated access entitlements while the aircraft is operating.

The government has placed responsibility for this important measure on the pilot who is operationally in charge of the aircraft at the time. If the chief pilot is on a sleep break or on a long-haul flight then responsibility rests with the pilot who is in command of the aircraft at the time. And at all times, if the pilot is acting reasonably to protect the safety or security of the aircraft, its cargo, a person, other aircraft or an airport there can be no offence committed. Those absolute defences are set out in primary legislation in section 10A of the Aviation Transport Security Act 2004.

Should the disallowance motion be passed there will be no legal constraint on who can enter the cockpit. This is completely inconsistent with the policies of successive Australian governments that only people with a genuine safety, security, operational or training need may be permitted to enter and remain in the cockpit of an aircraft. Of course, aircraft operators can direct pilots as to who can enter the cockpit. But Qantas will have one set of rules, Jetstar another set, Virgin another and Tiger will have its own rules.

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Order! It being 6.50 pm, pursuant to order the Senate will now proceed to general business, under a limitation of debate.