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2002-2003
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE
HOUSE OF REPRESENTATIVES
TO THE BILL AS INTRODUCED
(Circulated by authority of the Minister for Transport and
Regional Services,
the Honourable John Anderson, MP)
1. Issues Identification 7
2.
Problems 8
3. Objectives 10
4. Options
Considered 11
5. Measures for achieving desired
Objectives 11
6. Impact Analysis 14
7.
Consultation 15
8. Implementation and
review 16
The Civil Aviation Amendment Bill 2003 (the Bill) amends the
Civil Aviation Act 1988 (the Act) to implement a range of reforms to the
Civil Aviation Safety Authority’s (CASA) governance arrangements and
enforcement regime.
The Bill abolishes the CASA Board and retains CASA as
an independent statutory authority, thereby providing the Minister with stronger
and more direct control over CASA’s governance and accountability in the
areas of CASA’s policy directions and priorities, performance standards,
reporting and consultation processes, and stakeholder and industry advisory
machinery.
The Director of Aviation Safety (‘the Director’)
will become CASA’s Chief Executive Officer (CEO) and will be employed at
the Minister’s pleasure. As the CEO, the Director will have continued
responsibility for CASA’s safety regulatory functions, and he will have
new governance responsibilities for matters such as preparing CASA’s
Corporate Plan and setting the terms and conditions for CASA staff. The
Director will be directly accountable to the Minister for CASA’s
performance.
The Bill also provides for greater involvement in
CASA’s oversight by the Portfolio Secretary (‘the
Secretary’).
The Bill also introduces the following changes to
CASA’s enforcement regime.
Automatic stay of CASA’s
decision in cases other than a serious and imminent air safety
risk
The Bill puts in place an automatic stay of CASA’s
decisions to suspend, vary or cancel a civil aviation authorisation such as an
Air Operators Certificate (AOC), licence or certificate
(‘authorisation’) in cases which do not involve a serious and
imminent risk to air safety. The Bill amends the Act so that such decisions are
stayed by force of the Act. If the authorisation holder applies for
Administrative Appeals Tribunal (AAT) review of CASA’s decision within
five business days of being notified of the decision, the stay will remain in
force for a period of 90 days from the date of notification, or until the
AAT’s decision on the matter comes into operation, whichever is the
earlier. The authorisation holder may, if necessary, seek a further stay under
normal AAT procedures during this period.
If the authorisation holder
does not apply for an AAT review within five business days of CASA’s
decision, the automatic stay will lapse at the end of the fifth business day.
However, the authorisation holder may apply for a stay under normal AAT
procedures in order to extend the stay past the first five business
days.
There will be no automatic stay of a decision by CASA to vary the
conditions of an AOC as such decisions are not subject to a show cause notice
obligation.
The automatic stay is intended to balance enhanced fairness
with maintaining a high standard of aviation safety.
CASA’s
decision to immediately suspend an authorisation in cases involving a serious
and imminent risk to air safety
The Bill introduces revised
arrangements relating to CASA’s power to immediately suspend an
authorisation in cases where it has reasonable grounds to believe there is a
serious and imminent risk to air safety.
The Bill introduces a new
provision, which prohibits an authorisation holder from engaging in conduct that
constitutes, or contributes to, or results in a serious and imminent risk to air
safety. This will cover the immediate suspension of all authorisations under
the Act and regulations, rather than the current situation where an AOC is
suspended under the Act, and all other authorisations are suspended under
regulation 268 of the Civil Aviation Regulations 1988. Accordingly, regulation
268 will be repealed under the Bill.
Where CASA exercises its power to
suspend an authorisation because of a perceived serious and imminent risk to air
safety, CASA must seek an exclusion order from the Federal Court within five
business days of the decision to suspend, otherwise the suspension lapses. In
such cases, CASA’s decision to suspend will not be subject to merits
review by the AAT or to the new automatic stay provisions.
If CASA
applies for an exclusion order, the Court must issue the order if, after hearing
evidence from both parties, it is satisfied that there are reasonable grounds to
believe that the authorisation holder is breaching, or is likely to breach, the
new legislative prohibition on engaging in conduct that constitutes, or
contributes to, or results in a serious and imminent risk to air
safety.
The effect of the exclusion order is to restrain the
authorisation holder from engaging in conduct that, without the authorisation,
would be unlawful.
The Court will determine the period for which the
order is in force. The maximum period will be 40 days and CASA’s
suspension of the relevant authorisation will remain in force for the period of
the order. The Court may terminate or vary an order (including the period of
the order) on application by CASA or the authorisation holder.
CASA can
only apply for one extension of the order. If CASA applies for an extension,
and if an extension is granted, the exclusion order will continue for such
period as the court determines but cannot be for more than 28 calendar days.
If the extension is not granted, or if CASA withdraws its application for an
extension, the suspension will lapse on the day the Court decides not to grant
the extension, or on the day the application is withdrawn.
During the
period of the order, CASA must investigate the circumstances that gave rise to
the decision to suspend the authorisation. If at the conclusion of this
investigation, CASA considers that the relevant authorisation should be
suspended, cancelled or varied, CASA may, within five business days after the
end of the exclusion order period, issue a show cause notice to the
authorisation holder. A show cause notice is a written notice to the
authorisation holder setting out the reasons why CASA is considering making a
decision, and stating the period during which the authorisation holder may show
cause why CASA should not make the proposed decision. If CASA issues a show
cause notice, the suspension will continue for the period of the show cause
notice. If CASA does not issue a show cause notice, the suspension will lapse
at the end of the fifth day after the period of the order, unless the suspension
is revoked earlier.
Where CASA issues a show cause notice, it will be
required to make a final decision on the matter within five business days of the
end of the show cause notice period. If CASA’s final decision is to
suspend, vary or cancel an authorisation, the authorisation holder can seek
merits review by the AAT, but with no automatic stay.
If, however,
CASA’s investigation does not produce sufficient evidence that the conduct
of the authorisation holder constitutes a serious and imminent risk to air
safety, CASA may decide to issue a show cause notice under the provisions
relating to non-imminent safety risks. In those situations, the suspension that
resulted in the Court order will lapse on the day CASA gives the authorisation
holder the show cause notice.
The scheme will provide a greater degree
of natural justice by giving an authorisation holder the opportunity to have
their case heard in Court, thereby ensuring independent judicial scrutiny of
whether there are reasonable grounds to believe that the authorisation holder is
engaging in, or is likely to engage in, conduct that poses a serious and
imminent risk to air safety.
Demerit Point
Scheme
The Bill introduces a demerit point system based on the
NSW demerit point system for motor vehicle drivers’ licences. The scheme
will apply generally to offences against the regulations (offences against the
Act are excluded from the scheme). The number of points that will attach to
each offence will be prescribed in the regulations. CASA will record demerit
points against an authorisation holder’s name in a demerit point
register.
An authorisation holder will incur demerit points for an
offence if they are served with an infringement notice for the offence and pay
(in whole or in part) the fine specified in the notice; or if they are convicted
or found guilty of the offence as a result of challenging their liability for
the infringement notice in court, or of CASA taking prosecution action outside
the infringement notice scheme.
The period in which the maximum number of
points can be accumulated or exceeded before CASA takes any action is three
years. The maximum number of points that can accrue in the first three-year
period is 12 points. When an authorisation holder accrues or exceeds that
limit, CASA must issue a suspension notice to the authorisation holder. The
effect of this notice is that all the authorisations in the authorisation
holder’s name of the same class are suspended by force of the Act.
Classes of authorisations will be prescribed in the regulations and will
generally authorise a similar activity. The issue of a suspension notice is not
subject to merits review by the AAT, as CASA has no discretion in relation to
the issue of a suspension notice.
If a person’s authorisation has
been suspended once previously under the demerit points scheme then the person
will only need to accrue six points to have their authorisation suspended again
under the demerit points scheme which has the effect outlined in the previous
paragraph.
If a person has more than two suspensions under the demerit
points scheme the person will again be allowed a maximum of six points. However,
in these circumstances, CASA must issue a cancellation notice to the
authorisation holder. The effect of a cancellation notice is that all the
holder’s authorisations in the same class are cancelled by force of the
Act for a period of three years. The issue of a cancellation notice is not
subject to merits review by the AAT, as CASA has no discretion in relation to
the issue of a cancellation notice.
Where an authorisation holder has
several authorisations relating to the same activity, and all the authorisations
are suspended or cancelled, the authorisation holder will be able to apply to
CASA to have a particular authorisation reinstated with special conditions if
the suspension or cancellation of that authorisation will cause the
authorisation holder severe financial hardship. CASA’s decisions on such
applications will be subject to merits review.
All demerit points accrued
by the authorisation holder in relation to a particular activity will be deleted
from the register when the authorisation holder accrues or exceeds the maximum
number of points and the authorisation holder’s authorisations for that
activity are suspended or cancelled. In addition, demerit points accrued in
respect of a particular contravention will also be deleted if the authorisation
holder is prosecuted for that contravention and found not guilty.
This
scheme will provide a largely non-discretionary, self-executing system of
dealing with repeat offenders.
Protection from administrative
action for voluntary reporting
The Bill introduces a protection
from administrative action, based on the system administered by the National
Aeronautical Space Administration in the United States on behalf of the Federal
Aviation Administration.
Under the scheme, an authorisation holder will
be protected from administrative action in respect of an authorisation (ie
suspension, cancellation or variation of the authorisation, or the giving of an
infringement notice) if the authorisation holder voluntarily discloses to a
reporting body separate from CASA that they have committed a minor offence,
within ten days of doing so, and before they receive any communication from CASA
in relation to the contravention. It is not the intention of the scheme to
protect an authorisation holder from prosecution action.
Details about
the reporting body and the operation of the scheme will be prescribed in the
regulations. This is not intended to be a whistleblowing scheme and the
protection will only apply to the person who reports the
contravention.
The protection will apply only in relation to
‘reportable contraventions’. A ‘reportable
contravention’ is a contravention that is eligible to be reported so as to
receive the protection. Reportable contraventions will be contraventions of the
regulations and will not include deliberate contraventions of the regulations;
contraventions of prescribed regulations (ie the regulations to which the
protection will not apply in any circumstances will be prescribed);
contraventions that cause or contribute to an accident or serious incident
before or after the breach is reported; and contraventions involving fraudulent
behaviour.
The reporting body will log each report in a confidential
reporting system; and will issue a receipt to the authorisation holder which
sets out the authorisation holder’s name, the date the report was made,
and the date and nature of the contravention. There will be no limit to the
number of reports an authorisation holder is able to submit, but they can only
be protected from administrative action for one reportable contravention every
five years.
Should CASA be alerted to the contravention reported,
through an independent investigation of a safety matter, within 5 years after
the contravention is reported, the authorisation holder will be protected from
administrative action in respect of the contravention, providing they can
produce proof that they reported the contravention, and provided that the
contravention was in fact reportable.
Reports under this scheme will not
relieve an authorisation holder of their mandatory reporting obligations under
the Transport Safety Investigation Act 2003.
CASA will not be able
to use a report of a reportable contravention; the fact that the report has been
made; or a receipt given to it by an authorisation holder, as evidence in
criminal proceedings against the person who reported the contravention, if at
the time the proceedings commence, the contravention is still
reportable.
The Bill provides for regulations to be made dealing with the
information reported to the prescribed person under the scheme. Such
regulations may not allow ‘personal information’ within the meaning
of the Privacy Act 1988 (‘Privacy Act’) to be disclosed.
However, it is envisaged that the reporting body will publish de-identified
information arising from reports, which will facilitate analysis of trends that
may indicate a need for training etc.
The scheme is intended to encourage
self-reporting of minor breaches without the fear of reprisal, and provide a
means to identify general trends in matters of concern relating to air
safety.
Enforceable Voluntary Undertakings
The Bill
establishes a scheme of enforceable voluntary undertakings that will give CASA
power to accept a written undertaking from an authorisation holder in relation
to compliance with civil aviation safety legislation. Such undertakings will be
completely voluntary – CASA will not have the power to compel an
authorisation holder to give an undertaking. An undertaking may run for no more
than six months. However, once an authorisation holder has given an
undertaking, if CASA considers that the holder has breached a term of that
undertaking, CASA will be able to seek an order from the Federal Court requiring
the authorisation holder to abide by the undertaking. The provision is modelled
on section 87B of the Trade Practices Act 1974.
Finally, the Bill
amends Regulation 269 of the Civil Aviation Regulations 1988 (CAR 1988). At
present, CASA may vary, suspend or cancel an authorisation under paragraph
269(1)(a) where it is satisfied that the authorisation holder has contravened a
provision of the Act or the Regulations. The Bill will provide that CASA may
exercise this power only if the authorisation holder has actually been convicted
or found guilty by a court of an offence against the Act or the regulations in
respect of the contravention.
The change to Regulation 269 will take
effect from the date of Royal Assent, rather than four months after that date,
as is the case for the new enforcement measures, as it is not dependent on the
other enforcement changes in the Bill.
The Bill is largely of a machinery nature, and aside from some savings
from the abolition of the CASA Board, will have no financial impact on the
Commonwealth.
Introduction
This Regulation Impact Statement (RIS) deals
with the proposed new enforcement measures for the Civil Aviation Safety
Authority (CASA), excluding Enforceable Voluntary Undertakings (EVUs), which
were agreed to by the Government on 18 November 2002.
A RIS for the
EVUs was previously prepared for the Aviation Legislation Amendment Bill
(No.2) 2000, which subsequently became the Aviation Legislation Amendment
Bill (No.1) 2001. After passing the House of Representatives the Bill
was referred by the Senate to the Rural and Regional Affairs and Transport
Legislation Committee. Although the Committee reported in April 2001 the Bill
was not passed by the Senate and lapsed with the proroguing of Parliament before
the last Federal election.
The Committee made a number of recommendations
for amendments to the Bill and other requirements to meet industry’s
concerns mainly about the unrestricted scope of the undertakings, and increasing
the levels of accountability and transparency in their administration, as
expressed at the Committee’s public hearings. These recommendations have
been taken into account in this Bill.
The package of changes to
CASA’s enforcement regime, which are proposed to take effect four months
from the date of Royal Assent, will provide CASA with a broader range of tools
so that the regulatory action can more appropriately be matched with the
seriousness of the breach. They also strike the appropriate balance between
enhancing fairness and maintaining CASA’s powers to take action on safety
breaches.
CASA’s enforcement powers are set out in the Civil Aviation Act
1988 and Civil Aviation Regulations and provide for action to be taken
against the holder of a civil aviation authorisation (eg licence, certificate or
authority) who does not meet the relevant safety standards.
CASA’s
regulatory response to a detected inadequacy in the manner in which an operator
conducts its operations, or a licence holder exercises the privileges of his or
her licence, varies according to whether the inadequacy creates a serious and
immediate safety threat or whether it merely increases the overall safety risk
in a less direct and immediate way. This response can vary from a simple
request to observe the standards to suspension, cancellation or variation of a
licence or certificate to operate, and in major breaches of the rules to
prosecution under the criminal code.
The current tools available to CASA in
taking enforcement action
are:
• counselling/warning;
• remedial
training;
• requiring a person to undergo an
examination;
• variation, suspension or
cancellation of Air Operator’s certificates and civil aviation
authorisations;
• issue of infringement notices;
and
• prosecution action.
CASA’s
primary focus is on the safety of fare paying passengers. In almost all cases,
CASA considers that the appropriate response to inadequacies that create a
serious and immediate threat to fare paying passengers must be immediate licence
or certificate cancellation or suspension action. In other cases, other
regulatory responses may be more appropriate. It is important that any detected
inadequacy that increases the safety risk must be addressed in some way and must
not be permitted to continue.
The public has an expectation that air
safety is regulated effectively, and that all participants in the aviation
industry comply with CASA’s safety rules. It is therefore imperative that
CASA has the appropriate enforcement powers to ensure that only persons and
entities that can demonstrate that they can, and will, meet safety requirements
are to be allowed to participate.
However, an enforcement regime needs to
encourage a culture of compliance without unduly impacting on individual rights.
CASA’s enforcement policy determines the way CASA uses its powers to
regulate the industry. The Government must ensure that CASA uses its powers in
a way that inspires the confidence of the travelling public, and is seen to be,
fair, transparent, consistent and appropriate.
The
Problems
There are a number of reasons why changes are necessary and a new
approach to enforcement is needed in order to enable CASA to more properly
discharge its responsibility to the Australian public.
First, aviation
safety depends upon there being a high level of trust between CASA and the
industry. Some parts of the industry believe that CASA’s current
enforcement processes are arbitrary, inconsistent and unfair.
Secondly,
the Government believes that CASA should give proper emphasis to its safety
education and promotion functions. However, CASA can only do this efficiently
if it has quality information available to it about contraventions of the safety
rules. Pragmatically, no matter how many resources are committed to the task,
the very nature of aviation means that a significant number of contraventions
will always remain undetected. Accordingly, it is considered that effective
safety education and promotion and a new approach to enforcement that encourages
the voluntary reporting of honest contraventions go hand in
hand.
Finally, the Government believes that the vast majority of the
aviation industry is committed to working within the safety rules. A new
approach to enforcement will ensure that scarce and expensive investigation and
enforcement resources are not wasted on pursuing this segment for minor,
inadvertent or technical contraventions that do not significantly affect safety.
CASA needs to have the capacity to vigorously pursue those who choose to operate
outside the rules and those who put the lives of fare-paying passengers at
risk.
The basic philosophy underpinning the proposed new approach is
that:
• a person who reports making an honest mistake of a minor nature
generally should not have their licence, certificate or authority suspended or
cancelled;
• there should be a measured response to less serious
contraventions of the safety rules which should involve counselling, warnings,
training or administrative fines, rather than either criminal prosecution or the
suspension or cancellation of licences, certificates or
authorities;
• the right to seek a merits review from an impartial
decision maker should be a primary consideration in the enforcement process,
except in those rare cases where there is an immediate, serious threat to the
safety of fare-paying passengers; and
• people who consciously and
repeatedly choose to operate outside the rules or who put the lives of
fare-paying passengers at risk should be prosecuted and removed from the
industry.
Need for prompt and independent
review
CASA’s enforcement powers continue to receive criticism
from some sectors of industry which advocate that CASA should not be a regulator
and enforcer. Central to this criticism is CASA’s power to immediately
suspend an aviation authorisation in the case of an imminent risk to air safety;
or to vary, suspend or cancel an aviation authorisation in situations where
there is no imminent risk to air safety.
Presently, if a person in the
aviation community disagrees with an exercise of a suspension, variation or
cancellation power by CASA, the person can lodge an application for review of
the relevant decision with the Administrative Appeals Tribunal (AAT). In
reviewing the decision, the AAT considers the merits of the original decision;
that is whether the decision was the correct or preferable decision on the basis
of the facts and applicable law.
In addition, the Federal Court has
jurisdiction to review the exercise of CASA’s suspension, variation or
cancellation powers on legal grounds under the Administrative Decisions
(Judicial Review) Act 1977. The Federal Court does not look at the merits
of CASA’s decision. It does, however, review CASA’s exercise of the
discretion to determine whether the exercise of the discretion breached a
principle of law.
However, reviews of suspension and cancellation action
have inherent time delays and may take some months to finalise and in the
meantime the operator is unable to continue his/her business leading to
financial problems. There have also been general claims that the current
processes are unfair and do not allow for due process.
To improve
procedural fairness for industry in suspension and cancellation action taken by
CASA there is a need for measures to be introduced which will provide methods of
prompt and independent review and redress. Such measures would address any
perceived or actual actions of improper motive or lack of objectivity on the
part of CASA in the exercise of its suspension and cancellation powers. A
process needs to be found that strikes the correct balance between the interests
of safety on one hand, and the individual and commercial interests of aviation
participants on the other.
CASA currently has a system of infringement notices for breaches of the
regulations not involving serious safety matters where neither prosecution nor
suspension action is warranted but some formal enforcement action is justified.
In most cases, payment of an administrative fine by a person will
dispose of the matter and no further action is to be taken. However, in more
serious circumstances, for example, multiple or repeated contraventions of the
regulations which evidence not only a poor safety record, but also an apparent
unwillingness by a person to comply, infringement notices can be used in
conjunction with licence variation, suspension or cancellation action. The use
of infringement notices is an administratively simple scheme and allows for a
greater focus to be given to more serious offences involving the safety of fare
paying passenger operations.
However, the imposition of administrative
fines may not always deter the individual or organisation from breaching the law
in a similar way in the future, particularly if it is seen as just a cost of
operating. Furthermore, it is desirable to have a mechanism that essentially
removes the scope for discretion and predetermines the point at which a
person’s aviation authorisation would become suspended or cancelled so
that the process is transparent, consistent and fair. The linking of demerit
points to the infringement notice will provide a self-executing scheme.
The primary objective of Government action is to provide CASA with a more
effective range of enforcement measures (both ‘light touch’ and
‘heavy-handed’) to encourage a culture of compliance and reduce
incidences of unsafe behaviour and therefore improve both the safety environment
and record in Australia.
The sub-objectives include that the proposed new
regulatory responses will allow CASA to:
• effectively and efficiently
utilise CASA and industry resources;
• deter recurrences or
continuations of more minor breaches;
• assist industry to comply
with, and CASA to enforce, laws that are open to interpretation, for example,
because they are drafted in a non-prescriptive, outcome-based style;
• deal appropriately and not overly severely with individuals or
organisations who commit a minor or technical breach of the law and who
demonstrate a willingness to take steps to prevent further similar breaches in
the future;
• utilise appropriate regulatory responses in particular
situations without significant delay and without unduly impacting on individual
rights;
• reduce the scope for criticism of the exercise of the
suspension and cancellation powers by CASA by providing methods for prompt and
independent review and redress; and
• improve the level of procedural
fairness.
Heavier regulatory responses, such as immediate suspensions
which continue only if the Federal Court makes an appropriate exclusion order,
will empower CASA to specifically require or restrain particular conduct in a
way that must be shown to constitute a serious and imminent risk to safety. The
interpolation of an impartial judicial process, in the form of the decision on
CASA’s application for an exclusion order, will have the effect of
separating CASA to some extent from the action taken.
Identification
of Options
A review of CASA’s governance arrangements, rule
making processes and enforcement procedures was completed by the current
Chairman of CASA, Mr Ted Anson, in June 2002, and formed the basis for the
Government’s consideration of reforms to CASA.
On 18 November 2002
the Government agreed to a number of reforms to CASA, including that
CASA’s enforcement processes be enhanced by the following package of
changes:
(a) a scheme for the automatic ‘stay’ of
CASA’s decision to vary, suspend or cancel an aviation licence,
certificate or authority (aviation permission) where there is no imminent risk
where the permission holder seeks a review within a specified time
frame;
(b) the use of injunctions for immediate suspensions where there is a
serious and imminent risk;
(c) the introduction of a demerit point system to
provide an enforcement tool for CASA to deal with minor breaches;
(d) a
protection from administrative action for voluntary disclosure to assist CASA in
gathering information on contraventions; and
(e) enforceable voluntary
undertakings to redress infringements for which prosecution or licence action
would be disproportionate or unwarranted.
The Government also agreed that
the reform measures take effect from 1 July 2003.
Against this
background, the choice of alternative policy options is restricted. The only
other feasible policy option would be not to undertake reform and maintain the
status quo.
The Government has decided that CASA’s enforcement processes be
enhanced by the following measures.
The Government has decided that there should be an automatic stay of
normal decisions to vary, suspend or cancel aviation authorisations, allowing
the authorisation holder to continue to exercise the privileges of the
authorisation. Automatic stays of this type are presently used in the USA.
This would not apply to immediate suspensions to ameliorate a serious and
imminent risk to air safety, or to CASA’s decision to vary the conditions
of an Air Operator’s Certificate.
Under the proposed scheme, a
final decision by CASA to vary, suspend or cancel an aviation authorisation
would automatically be ‘stayed’ for a period of 90 days where the
holder of the authorisation lodges an appeal to the AAT against the decision
within 5 days of being notified of the decision. At the end of the 90 day
period the stay will lapse and the authorisation holder will need to apply to
the AAT for a further stay at that time.
If the authorisation holder
lodges an appeal to the AAT outside the 5 day period, they can seek a stay of
CASA’s decision but will not have an automatic stay, as is currently the
case.
Such a scheme is unlikely to have an adverse safety impact because,
in the ordinary course of events, final decisions to vary, cancel or suspend an
aviation authorisation are not linked to an immediate risk to aviation safety
and often taken many months to finalise.
Immediate Suspensions
– Federal Court Orders
As mentioned above, the automatic stay
procedure would not be able to be used by persons whose actions are considered
to pose a serious and imminent risk to air safety.
Accordingly, this is
a separate mechanism which is needed to deal with such urgent safety risks. The
exercise of an immediate suspension power not only protects passengers and
property on board aircraft that may be unsafe, it also protects the crew of the
relevant aircraft, the families of passengers, persons on the ground and public
confidence in aviation safety as a whole. It will be able to be exercised in
short time frames, at any time. It will also strike the correct balance between
the interests of safety on the one hand, and individual and commercial interests
of aviation participants on the other.
As is currently the case, CASA
will, under this mechanism have the power to immediately suspend an
authorisation upon receiving adequate evidence.
However, CASA must within
5 days of its decision to suspend seek an exclusion order from the Federal
Court, otherwise the suspension lapses. In such cases, CASA’s decision to
suspend will not be subject to merits review by the AAT or to the new automatic
stay provisions.
The Court’s decision will be based on appropriate
argument and evidence from both parties.
The effect of the exclusion
order will be to restrain the authorisation holder from engaging in conduct
that, without the authorisation, would be unlawful.
The maximum period of
the Court order will be 40 days and CASA’s suspension will continue to
remain in force for the period of the order. CASA may apply for one extension
of the order. In such cases the order will continue for 28 days unless the
Court decides otherwise.
At the end of the order period, CASA will have 5
days in which to issue a show cause notice and the suspension will continue for
the period of the notice (a reasonable period not to exceed 28 days). If CASA
does not issue a show cause notice the suspension will lapse at the end of the
5th day.
CASA must make a final decision on the matter within
5 days of the end of the show cause period. It may do nothing further, in which
case the suspension lapses, or it may decide to vary, suspend or cancel the
authorisation. If CASA’s final decision is to suspend, vary or cancel an
authorisation, the authorisation holder can seek merits review by the AAT, but
with no automatic stay.
This would only allow CASA to unilaterally revoke
an authorisation, allowing it to protect immediately what it perceives to be the
safety interest, but only for 5 days during which time any commercial detriment
would be relatively minor.
It should be noted that the AAT currently has
jurisdiction to stay a decision pending the hearing of review on the merits of a
decision, including a decision to immediately suspend an authorisation.
However, under the proposed scheme CASA’s initial decision to suspend an
authorisation because of a perceived serious and imminent risk to air safety
will not be subject to merits review by the AAT or to the new automatic stay
provisions. The benefit of the proposed scheme is that unlike the present
system where the authorisation holder is required to seek a review of the
decision to suspend, the new system will require CASA to apply for a judicial
order preventing the authorisation holder from conducting activities pursuant to
their licence, and only if the court grants such an order can CASA’s
suspension continue.
As an additional enforcement tool, the Government has decided to
introduce a demerit point system for minor infringements of the regulations,
similar to the system in place for motor vehicle drivers’ licences. Under
this system, the point at which a person’s aviation authorisation would
become suspended or cancelled would be predetermined, thus largely removing the
scope for discretion.
The points system will be linked to the issue of
infringement notices and prosecution action. An infringement notice will,
depending upon the particular alleged offence, carry a specified number of
points. There will be a maximum number of points that can be incurred every
three years. Once the statutory number of points has been reached, the law
would operate to automatically suspend a person’s licence or certificate.
CASA would simply administer that law, in the same way as the Roads and Traffic
Authority administers the demerit point scheme for road traffic infringements in
New South Wales. The suspension period will depend on the points incurred.
In order to deal appropriately with individuals suspended for a second
and third time the maximum number of points that can be incurred in the second
and third three year periods will be halved with cancellation action being taken
in the third three year period rather than suspension action.
Where an
authorisation holder has several authorisations relating to the same activity,
and all the authorisations are suspended or cancelled, the authorisation holder
will be able to apply to CASA to have an authorisation reinstated with special
conditions if the suspension or cancellation of that authorisation will affect
their livelihood. CASA’s decisions on such applications will be subject
to merits review.
It would be inappropriate for infringements that
involved a serious and imminent risk to the safety of air navigation to be
covered by the demerit point scheme.
Protection from administrative
action for voluntary self reporting
This scheme will assist CASA in
the gathering of information about contraventions of the regulations. It will
provide a statutory protection from administrative action (eg licence
suspension) to authorisation holders who voluntarily disclose minor breaches to
an independent body through a confidential reporting system within ten days of
the breach. The proposed confidential reporting system is based on the proven
system used in the United States known as the Aviation Safety Reporting System.
Under that system there is no limit on the number of reports a person is able to
submit but a person can only take advantage of the protection once every 5
years.
However, a protection will not be available
for:
• deliberate breaches of the regulations;
• breaches of
the Civil Aviation Act 1988;
• breaches that seriously endanger the
safety of fare-paying passengers, other aircraft or people on the ground;
• contraventions involving fraudulent behaviour;
or
• contraventions that cause or contribute to an accident or serious
incident before or after the report is lodged.
This scheme will encourage
a culture of reporting safety breaches and will assist CASA in identifying
patterns that may indicate a need for training.
A main priority of commercial operators is to resolve disputes quickly.
A delay in resolving matters almost always negatively affects income. The
automatic stay procedure will allow the individual or organisation to continue
to earn income.
As is currently the case, individuals and organisations
are likely to obtain legal advice before lodging an appeal against CASA’s
decision, and this will involve expense. However, the right of appeal is
voluntary.
Consequently there is minimal change to the current
arrangements other than that the individual or organisation can continue to
operate.
Overall, the automatic stay procedure is likely to reduce
industry costs.
Immediate Suspensions – Federal Court
Orders
The exercise of CASA’s suspension and cancellation
powers has been challenged in the Federal Court in only a relatively small
number of occasions.
In the more serious or complex cases, the
individuals or organisations involved would normally engage lawyers no matter
what regulatory response CASA chose to make, so the proposed scheme would not
add to costs.
The demerit point scheme is likely to have a positive deterrent effect on
licence holders and as a consequence there is likely to be less of a need for
matters to be prosecuted by the Director of Public Prosecutions (DPP) or for
CASA to suspend or cancel licences, certificates and approvals.
There
will be some minor additional costs to CASA in administering the scheme but
these are not expected to be significant.
Protection for voluntary
disclosure
This scheme is purely voluntary. An individual or
operator can decide not to disclose the information if, in their assessment of
the particular circumstances, it is not in their interests to do so. In these
circumstances, so far as the individual or operator is concerned, the changes
would have no effect. The purpose of the scheme is in fact to provide an
incentive to licence holders to voluntarily report unintentional contraventions
of the safety rules.
There would be some additional costs to the agency
responsible for administering the scheme. However, the actual resources
involved are expected to be minimal and no additional funding has been sought.
CASA’s enforcement powers and procedures have been the subject of
consultation with industry for many years. The new measures outlined above are
responsive to the representations received from industry.
The Minister
issued a press release on 18 November 2002 announcing a number of reforms to
CASA, including the introduction of a package of measures to reform CASA’s
enforcement processes.
The Minister also hosted an industry function on
12 December 2002 to advise key stakeholders of the reform measures.
The Government has decided that CASA’s enforcement processes should
be enhanced by all of the above measures.
The new measures will
strengthen CASA’s enforcement regime by introducing all of the above new
courses of action for CASA and at the same time will provide safeguards for the
industry through automatic stays and court involvement.
The vast majority
of the industry is committed to working within the safety rules. The
introduction of a demerit point scheme will provide CASA with an important new
regulatory response to enable it to better deal with minor breaches of the
safety regulations. It should also generate a proper deterrent effect on
aviation participants.
In addition, and in the interests of promoting
CASA’s reputation, the aviation community will be offered some comfort
from the reduction of the unilateral nature of the exercise of the cancellation
powers through: causing immediate suspensions to lapse unless the Federal Court
grants an appropriate exclusion order; and automatically staying for a period of
ninety days other exercises of the suspension and cancellation
powers.
The proposed new enforcement regime will reduce incidences of
unsafe behaviour and therefore improve both the safety environment and record in
Australia. This encourages greater confidence by the public in air travel,
provides additional business opportunities for the aviation industry, and offers
safe skies for all.
The recommendations will be implemented through amendments to existing
legislation (ie Civil Aviation Act 1988 and associated
regulations).
The usage/uptake of the new measures will be
monitored jointly by the Department and CASA.
Clause 1 - Short Title
Clause 1 is a formal
provision specifying the short title of the Bill.
Clause 2 -
Commencement
Clause 2 provides that Sections 1 to 4 and Items 1,
3, 6, 7, 8, 10, 11, 12, 13 and 18 to 48 of Schedule 1, and Item 2 of Schedule 2
of the Bill will commence on Royal Assent.
Clause 2 also provides that
Items 2, 4, 5, 9, 14, 15, 16 and 17 of Schedule 1, and Item 1 of Schedule 2 of
the Bill will commence four months after Royal Assent.
Clause 3 -
Schedules
The Civil Aviation Act 1988 is amended as set
out in Schedule 1 to the Bill.
The Civil Aviation Regulations 1988 are
amended as set out in Schedule 2 of the Bill.
Clause 4 -
Application and savings
Clause 4 provides that the repeal of
Regulation 268 of the Civil Aviation Regulations 1988 under Schedule 2 will not
apply to notices served by CASA before the repeal of that regulation. Clause 4
also sets out the savings provisions for the preparation of a corporate plan,
the Director of Aviation Safety’s position, the terms and conditions for
CASA staff previously determined by the Board; and defines the terms
‘CASA’ and ‘Director’.
SCHEDULE 1 –
AMENDMENTS
Civil Aviation Act
1988
Items 1, 3, 7 and 8 - Subsection
3(1)
Items 1, 3, 7 and 8 amend subsection 3(1) of the Act by
repealing the definitions of Board, Chairperson, Deputy Chairperson and member,
as they are superfluous following the abolition of the Board.
Items 2
and 9 – Subsection 3(1)
Items 2 and 9 amend subsection 3(1) of
the Act to insert new definitions of ‘business day’ and ‘show
cause notice’ for the purposes of the new enforcement
schemes.
Items 4 and 5 - Subsection 3(1)
Items 4 and 5
amend subsection 3(1) of the Act to expand the existing definition of
‘civil aviation authorisation’ to include authorisations under the
Act and the regulations, and Air Operators Certificates and Part III
permissions.
Item 6 – Subsection 3(1)
Item 6 amends
the definition of ‘corporate plan’ in subsection 3(1) of the Act to
replace the reference to the Board with a reference to the Director. This is a
consequence of the abolition of the Board.
Item 10 – Section
12(1)
Item 10 amends s.12(1) of the Act to add a new provision
providing the Minister with a new explicit power to direct CASA to consult in a
particular manner, about particular matters with specific bodies, individuals or
organisations.
Items 11 and 12 – Section 12A
The
Minister has the power under s.12A(1) to notify CASA of his views on the
appropriate strategic direction for CASA, and the manner in which CASA should
perform its functions. Item 11 will amend subsection 12A(1) to insert a new
provision preventing the Minister from notifying his views in relation to how a
particular case or particular individual authorisation holder should be dealt
with. Section 12A(2) currently requires that CASA only take account of those
views. Item 12 will amend s.12A(2) to require CASA to act in accordance with
the Minister’s views.
Item 13 – New sections 12C and
12D
Item 13 inserts new ss.12C and 12D. Section 12C will provide the
Minister a new power to enter into a binding agreement with the Director in
relation to the performance of CASA’s powers and the execution of
CASA’s functions. Such an agreement is likely to cover CASA’s
policy direction, priorities and performance standards. The Director will be
required to advise the Minister of any matter that may prevent him from
complying with the terms of the agreement. The provisions at Item 13 ensure
that an agreement cannot impose a requirement that CASA perform a function or
exercise a power in relation to a particular case or an individual authorisation
holder in a particular way. Such agreements will be required to be
tabled.
The new s.12D will provide the Minister with a new explicit power
to direct CASA to report to the Minister or to the Departmental Secretary under
specific arrangements and about specific matters.
Item 14 –
Section 28BA
Item 14 amends s.28BA of the Act by inserting a new
provision requiring CASA to issue a show cause notice before suspending or
cancelling an AOC. Under the amendment, where CASA decides to suspend or cancel
an AOC, CASA will also be required to include in the notice of its decision
details about the holder’s rights to obtain an automatic stay under the
new s.31AA being inserted under Item 17.
Item 15 – Part
III
Item 15 creates five new Divisions in Part III of the Act to
establish five new schemes under CASA’s enforcement
regime.
Division 3A
Item 15 introduces Division 3A
to deal with revised arrangements for the immediate suspension of an
authorisation in cases of a serious and imminent risk to air safety. Currently,
CASA may immediately suspend a licence or certificate (other than an AOC)
under regulation 268 of the Civil Aviation Regulations 1988, and an AOC
under s.28 of the Act. The new Division 3A amends these arrangements by
encompassing the immediate suspension of all authorisations under the Act and
the regulations. Regulation 268 will be repealed by regulation amendment.
Division 3A encompasses:
– new s.30DA which defines the term
‘engage in conduct’ as an act or omission;
– new s.30DB
which creates a legislative prohibition preventing an authorisation holder from
engaging in conduct that constitutes, contributes to or results in a serious and
imminent risk to air safety. This provision is required to ensure the Federal
Court has judicial power to hear matters related to this
scheme;
– new s.30DC which allows CASA to suspend an authorisation
by written notice to an authorisation holder where it has reason to believe they
have contravened the new s.30DB prohibition, and provides that the suspension
will lapse at the end of the fifth business day after the day they were notified
of the suspension, unless CASA seeks a Federal Court order under the new s.30DE
within that period;
– new s.30DD allows CASA to make a decision
under s.30DC even if it has issued a show cause notice to an authorisation
holder under another provision of the Act or the regulations. s.30DC also
provides that a suspension under s.30DC will have effect despite a stay
(automatic or not) of an earlier decision to vary, suspend or cancel the
authorisation;
– new s.30DE requires the Federal Court to grant an
exclusion order of not longer than 40 days, if it satisfied upon hearing
evidence from both parties, that there are reasonable grounds to believe the
authorisation holder is engaging in or is likely to engage in conduct that
contravenes s.30DB;
– new s.30DF provides that either party may
seek a variation of the order. However, the Court may only vary the order
period once, by either extending the original period by no more than
28 days, or shortening it. s.30DF provides that an application for
variation must be made before the end of the order period, and that CASA may
only seek one extension. The table in s.30DF summarises the scenarios that will
end the original suspension;
– new s.30DG requires CASA to complete
its investigation of the circumstances that gave rise to the suspension by the
end of the order period;
– new s.30DH provides that where CASA
decides to issue a show cause notice at the end of its investigation, CASA must
issue the show cause notice by the end of the fifth business day after the last
day of the order in order for the suspension to continue; and
– new
s.30DI requires that where CASA has issued a show cause notice, that it notify
the authorisation holder of a final decision to suspend, vary or cancel their
authorisation, within five business days after the end of the show cause period
for the suspension to continue.
Where CASA’s investigation reveals
evidence that indicates a risk other than a serious and imminent risk, CASA may
issue a show cause notice under the new automatic stay provisions at Item 17
that deal with cases other than a serious and imminent risk. In that regard, an
automatic stay would take effect and the suspension that gave rise to the
exclusion order would lapse.
– new s.30DJ provides a table
detailing when the suspension ends.
This scheme is designed to enhance
fairness by introducing court adjudication of CASA’s decisions to
immediately suspend an authorisation.
Division
3B
Item 15 introduces a scheme for enforceable voluntary
undertakings (EVUs) under new Division 3B, s.30DK, modelled on s.87B of the
Trade Practices Act 1974. s.30DK will allow CASA to accept a written
undertaking from an authorisation holder in connection with a matter arising
under the Act or the regulations in relation to which CASA has function or power
under the Act or the regulations.
The proposal for EVUs was introduced
previously under the Aviation Legislation Amendment Bill (No. 2) 2000, which
subsequently became the Aviation Legislation Amendment Bill (No. 1) 2001, and
has been revised to take into account recommendations made by the Senate Rural
and Regional Affairs and Transport Legislation Committee which examined that
Bill. The changes made are as follows:
• CASA must publish details
of an EVU on the Internet;
• the period for which an EVU applies
must not exceed 6 months; and
• where CASA considers a person has
breached any terms of an EVU and applies to the Federal Court for an order, any
order by the Court which requires payment of money to the Commonwealth will be
limited in that the Court can only order an amount up to the amount of any
financial benefit that the person has obtained directly or indirectly from, and
that is reasonably attributable to, the breach of the undertaking.
s.30DK
further provides that an EVU must not require payment to CASA as the air safety
regulator.
EVUs are an important component of CASA’s published
enforcement policy, which was approved by the CASA Board in 1998 and
subsequently circulated for consultation. CASA officers often detect regulatory
inadequacies in the operation of an authorisation. Such inadequacies may
involve a breach of the Act, the regulations or the Civil Aviation Orders, but
in many instances prosecution action for that breach would be disproportionate
and unwarranted – either by nature of the breach, or the diversion of
resources that would be involved in conducting that prosecution, or in terms of
the net benefit to aviation safety. In those circumstances the use of an EVU to
address the inadequacy is seen as an efficient and effective way in which
aviation safety can be enhanced without the use of unwieldy or inappropriate
criminal or administrative sanctions.
Division
3C
Item 15 establishes a new scheme under Division 3C whereby an
authorisation holder will be protected from administrative action (suspension,
variation or cancellation of their authorisation, or the giving of an
infringement notice) if they voluntarily report a contravention of the
regulations within 10 days of the contravention to an independent reporting
body. Division 3C does not confer any immunity from
prosecution.
Division 3C encompasses:
– – new s.30DL
provides definitions for ‘accident’, ‘serious incident’,
‘prescribed person’ and ‘reportable contravention’. This
definition of ‘reportable contravention’ details the contraventions
that will not be covered by the protection;
– new s.30DM provides
that the regulations will prescribe a person for the purposes of the scheme and
ensures that the prescribed person may be a statutory authority or statutory
office holder;
– new s.30DN provides that details of the reporting
scheme, including the operation of the scheme, will be prescribed under the
regulations. s.30DN also prevents the disclosure of personal information within
the meaning of the Privacy Act;
– new s.30DO prevents CASA from
taking administrative action in respect of a reportable contravention if the
authorisation holder can prove they have reported the contravention in the
required timeframe, and before the issue of an infringement or show cause
notice;
– new s.30DP details the nature of the proof CASA requires
for the protection to apply;
– new s.30DQ provides that an
authorisation holder can only be protected from administrative action from one
reportable contravention every five years; and
– new s.30DR
provides that a report of a reportable contravention; the fact that the report
has been made; or a receipt produced as proof that a reportable contravention
was reported in the required timeframe, cannot be used as evidence in any
criminal proceedings against the authorisation holder, if at the time the
proceedings commence, the contravention is still
reportable.
Division 3D
Item 15 establishes a new
demerit point scheme along the lines of the NSW system of demerit points for
motor vehicle drivers’ licences, whereby demerit points will be recorded
against an authorisation holder’s name in relation to the class of
authorisations to which the offence relates, and when the specified maximum
number of points is reached or exceeded for that class, all the authorisations
in that class will be suspended or cancelled. For example, where an
authorisation holder accrues several points against their commercial pilot
licence, and several points against their private pilot licence, all their pilot
licences will be subject to suspension or cancellation. However, if the person
also holds maintenance authorisations, for example, those authorisations are not
suspended or cancelled.
The scheme is intended to be non-discretionary
in that an authorisation will be suspended or cancelled upon the maximum number
of demerit points being reached or exceeded. CASA will retain the discretion to
take a particular course of action in respect of an offence. Whenever it uses
an infringement notice (and the authorisation holder pays the penalty arising
from the infringement notice), or successful prosecution action to address a
contravention, demerit points will apply and the number of points that will
accrue will depend on the offence.
Division 3D encompasses the following
new sections:
– new s.30DS defines a cancellation notice and
suspension notice, prescribed offence, and register;
– new ss.30DT
and 30DU provides for the regulations to prescribe the offences to which the
scheme will apply, the number of points per offence, and the classes to which
particular authorisations belong according to the activities to which they
relate;
– new s.30DV provides a regulation-making
power;
– new s.30DW details when demerit points will be
incurred;
– new s.30DX provides for demerit points to attach in
relation to a class of authorisations;
– new s.30DY deals with the
first-time suspension of an authorisation under this scheme, requiring CASA to
issue a suspension notice in respect of all authorisations in the relevant class
of authorisations, where the authorisation holder has incurred 12 or more
demerit points in relation to the same class of authorisations in the three
years prior to the day the offence that took him to, or over, the limit was
committed. s.30DY sets out the suspension periods for the first three-year
period:
• 12-15 points 90 days (3 months)
• 16-19
points 120 days (4 months)
• Otherwise 150 days (5
months)
– new s.30DZ deals with the second-time suspension,
requiring CASA to issue a suspension notice in respect of all authorisations in
the relevant class of authorisations, where the authorisation holder has
incurred 6 or more demerit points in relation to the same class of
authorisations in the three years prior to the day the offence that took him to,
or over, the limit was committed. s30.DZ sets out the suspension periods for
the second three-year period:
• 6 – 9 points 90 days (3
months)
• 10-13 points 120 days (4 months)
• Otherwise 150
days (5 months)
– new s.30EA provides for the details that must be
included in a suspension notice;
– new s.30EB provides that where
the suspension of an authorisation in a particular class of authorisations has
effect under another provision of the Act or the regulations, the time of that
suspension does not count towards a suspension period invoked under this scheme.
For example, if at the time a 90-day suspension under this scheme comes into
force, another suspension of one of the authorisations affected by the demerit
point suspension has been stayed under s.31A and the AAT upholds the other
suspension for a period of 30 days, the 30 days do not count towards the
demerit point suspension. The intention is that both suspensions must run their
course and must be served in full;
– new s.30EC requires CASA to
issue a cancellation notice in respect of all authorisations in the relevant
class of authorisations, where the authorisation holder has incurred 6 or more
demerit points in relation to the same class of authorisations in the three
years prior to the day the offence that took him to, or over, the limit was
committed, and the authorisation holder has been given a suspension notice twice
before. The cancellation will be in effect for three years from the date of the
notice and the authorisation holder will not be entitled to apply for, or be
granted, an authorisation of the same class during that time (although there is
scope for cancelled/suspended authorisations to be reinstated under
s.30EF);
– new s.30ED provides for the details that must be
included in a cancellation notice, including that the commencement of the
cancellation period must not be earlier than 28 days after the date of the
notice;
– new s.30EE provides that all demerit points that
contribute to a suspension or cancellation are to be disregarded for the
purposes of subsequent calculations of demerit points;
– new s.30EF
allows CASA to reinstate a particular authorisation that has been suspended or
cancelled under this scheme, with special conditions, if it satisfied that the
suspension or cancellation of that authorisation will cause the authorisation
holder severe financial hardship;
– new s.30EG requires CASA to
maintain a register in which to record demerit points in line with the Privacy
Principle 11 of the Privacy Act, and to amend the register as necessary.
s.30EG also provides that other matters relating to the register will be dealt
with under the regulations;
– new s.30EH allows CASA to keep a
record of information obtained and action taken under this scheme. This is
essential for assisting CASA to determine where a suspension notice or
a
cancellation notice is required;
– new s.30EI sets out the
information to be recorded in the demerit point register; and
– new
s.30EJ requires CASA to remove demerit points that are no longer relevant from
the demerit point register.
Item 16 – Subsection
31(1)
Item 16 amends subsection 31(1) of the Act by providing that a
decision by CASA in regard to an application for reinstatement of an
authorisation under s.30EF will be reviewable by the AAT. Item 16 also excludes
a decision by CASA to immediately suspend an authorisation under new Division 3A
from AAT review as the current scheme does not permit such a decision to be
reviewed due to the seriousness of the situations that warrant such action. A
suspension or cancellation under Division 3D is also excluded from AAT review as
the scheme is a self-executing, non-discretionary scheme.
Item 17
– Section 31
Item 17 amends s.31 of the Act by inserting new
provisions that provide an automatic stay of CASA’s decision to suspend,
vary or cancel an authorisation in cases other than a serious and imminent air
safety risk.
New s.31A provides that the operation of a decision made
following a show cause notice will be automatically stayed and will continue in
force until the end of the fifth business day after CASA notifies its decision
unless the authorisation holder applies for an AAT review before the end of the
fifth day. Where an authorisation holder applies for a review the stay will
continue in force until the AAT makes its decision, or until the end of the 90th
day after CASA notified its decision, whichever occurs first. Section 31A also
requires the authorisation holder to provide CASA with a copy of their AAT
application, and provides that the authorisation holder can seek a further stay
under normal AAT procedures during the automatic stay period for a further stay
in case the AAT does not making its decision within the 90-day automatic stay
period.
New s.31B provides that an automatic stay will lapse if the
authorisation holder withdraws their review application, and it requires an
authorisation holder to advise CASA of such a withdrawal.
New s.31C
clarifies that s.31A will not effect the powers of the AAT to grant a stay under
its normal procedures.
New s.31D provides that the automatic stay
provisions in s.31A will not prevent CASA from taking immediate suspension
action under the new s.30DC against an authorisation holder who has an automatic
stay. This is intended to ensure that CASA’s powers to deal with cases
involving a serious and imminent safety risk are not diluted by virtue of the
automatic stay provisions.
Item 18 – Section 32
Item
18 omits the reference to the Board in s.32 of the Act and substitutes it with a
reference to the Director. This is a consequence of the abolition of the
Board.
Item 19 – Part IV
Item 19 repeals Part IV of
the Act so as to give effect to the abolition of the Board.
Items 20,
21, 22 and 23 – Sections 44 and 45
Items 20, 21 and 22 amend
subsections 44(1), 44(3), 44(6), 45(2) and 45(5) of the Act to replace the
Board’s responsibility for preparing CASA’s corporate plan, and
transfers that responsibility to the Director. Items 20 and 23 also amend
subsections 44(1) and 45(5) to formalise the Minister’s power to approve
the corporate plan.
Item 24 – Paragraph 49(2)(a)
Item
24 amends paragraph 49(2)(a) of the Act to add a reference to the new
s.12D.
Item 25 – Section 49
Item 25 makes
consequential amendments to s.49 of the Act as a result of the abolition of the
Board, to replace references to the Board with references to the Director
throughout the section.
Item 26 – Subsection
84(1)
Currently, s.84(1) of the Act requires the Minister to obtain a
recommendation from the Board prior to appointing a Director. As the Board is
being abolished, Item 26 will substitute this requirement with a requirement
that the Minister receive a report from the Secretary prior to appointing the
Director. This provision is intended to provide procedural fairness in line
with the appointment of Portfolio Secretaries under s.58 of the Public
Service Act 1999.
Item 27 – Subsection 84(2)
It
is current practice that the position of Director is a full-time position. Item
27 inserts a new provision to subsection 84(2) of the Act to explicitly provide
that the position is full-time. The provision is considered necessary so as to
clarify that the position cannot be anything other than a full-time
position.
Items 28, 29, 30 and 35 – Subsections 84(3) and 84(4),
Section 86
The Board is currently the employing body of the Director
for the purposes of the Remuneration Tribunal Act 1975. With the
abolition of the Board, the Minister will become the employing body. Items 28,
29, 30 and 35 amend subsections 84(3), 84(4) and s.86 of the Act to provide for
this change, to provide that the Minister will set the terms and conditions of
the Director’s employment, and to clarify that s.86 will have no effect
when a determination under s.12C of the Remuneration Tribunal Act is in
force.
Item 31 – Subsection 84A(1)
With the abolition
of the Board, Item 31 amends subsection 84A(1) of the Act to provide that the
Director will responsible to the Minister for managing CASA.
Item 32
– Section 84A
Item 32 provides that the Director is the Chief
Executive Officer of CASA.
Item 33 – New Section
84B
Item 33 creates a new subsection 84B setting out the
Director’s new responsibilities for deciding CASA’s objectives,
strategies and policies; ensuring CASA complies with Ministerial directions; and
ensuring CASA acts in accordance with the Minister’s views under s.12A.
Item 33 also creates a new subsection 84C that deals with the Director’s
disclosure responsibilities.
Item 34 – Section
85
Item 34 amends s.85 of the Act to provide that the Director must
seek the Minister’s consent to engage in external
employment.
Item 35 – Section 86
Item 35 adds a
drafting note explaining that s.86 has no effect if a determination is in force
under the Remuneration Tribunal Act 1973.
Item 36 –
Section 87
Item 36 amends s.87 of the Act to provide that the
Minister, in place of the Board, will be responsible for approving leave of
absence for the Director.
Item 37 – Section 88
With
the abolition of the Board, Item 37 provides that the Director may resign by
written notice to the Minister.
Items 38 and 39– Section
89
With the abolition of the Board, Item 38 amends s.89 of the Act to
provide that the Minister must receive a report from the Secretary prior to
terminating the Director. This provision is intended to provide procedural
fairness in line with the dismissal of Portfolio Secretaries under s.59 of the
Public Service Act 1999, while preserving the position that the Director
holds office at the employing authority’s pleasure.
Items
40 and 41 – Subsections 90(1) and 90(2)
Items 40 and 41 amend
subsections 90(1) and 90(2) of the Act to remove the references to the Board and
provide that the Minister may appoint an acting Director.
Item 42
– Section 91
Item 42 amends s.91 of the Act to provide that the
Director will be responsible for setting the terms and conditions of CASA staff
as a consequence of the abolition of the Board.
Item 43 –
Section 94
Item 43 repeals the Board’s existing power of
delegation under s.94 and substitutes it with the Director’s new power to
delegate all or any of CASA’s powers to an officer.
Item 44
– Section 94A
Item 44 amends s.94A of the Act to provide that
the Minister may delegate minor and administrative powers under ss.85, 87 and 90
to the Secretary, and to require the Secretary to comply with the
Minister’s directions.
Items 45 and 46 – Section
96
Items 45 and 46 will amend s.96 of the Act by amending the heading
and requiring that the Minister’s directions regarding reporting
arrangements under the new s.12D and any agreement between the Minister and the
Director under the new s.12C, must be tabled in Parliament.
Item 47
– Subsection 97AB(5)
Item 47 will repeal the definition of an
external service provider under s.97AB(5)(a) of the Act as a consequence of the
abolition of the Board.
Item 48 – Subsection
98(3B)
Item 48 removes a reference to ‘member’ in
subsection 98(3B) of the Act as a consequence of the abolition of the Board.
SCHEDULE 2 – Amendment of
regulations
Civil Aviation Regulations
1988
Item 1
Item 1 repeals Regulation 268 of the Civil Aviation
Regulations 1988 (CAR 1988), which currently provides that CASA may immediately
suspend an authorisation (other than an AOC) in cases of a serious risk to air
safety. The regulation is being repealed as the Bill creates new Division 3A
which revises these arrangements by encompassing the immediate suspension of all
authorisations under the Act and the regulations.
Item
2
Item 2 inserts new subregulation (1A) in Regulation 269 of the CAR
1988. At present, paragraph 269(1)(a) allows CASA to vary, suspend or cancel an
authorisation where it is satisfied that the authorisation holder has
contravened a provision of the Act or the Regulations. Proposed subregulation
(1A) provides that CASA may exercise the power to cancel an authorisation under
paragraph 269(1)(a) on the ground that the holder has contravened a provision of
the Act or the Regulations only if the authorisation holder has actually been
convicted or found guilty by a court of an offence against the Act or
the
regulations in respect of the contravention.
Where CASA cancels
an authorisation after the holder has been convicted of an offence, CASA’s
decision will be reviewable by the Administrative Appeals Tribunal. However,
CASA’s decision to cancel the authorisation will not be subject to an
automatic stay under proposed s.31A, as an automatic stay of such a decision
would be unwarranted and inappropriate given a court would have found the
authorisation holder guilty of the offence. The authorisation holder would have
already had the opportunity to put a case to, and be heard by, an independent
arbiter.
This amendment to regulation 269 will take effect on Royal
Assent, as opposed to the remaining enforcement measures which take effect four
months after Royal Assent. As this amendment is not dependent on the other
enforcement changes in the Bill, it is considered that the amendment should
commence at the same time as the new governance arrangements take effect.