Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Hansard source

I am Deputy Chair of the Regulations and Ordinances Committee, so I will be particularly circumspect in relation to my comments today. I will clearly not repeat any discussions that might have occurred during the meetings of the regs and ords committee in relation to this matter, of which I can say that there were many.

In relation to Senator O’Brien’s comments, I will need to re-check the Hansard but I do not remember at all any commentary from Senator Macdonald that would indicate that there had not been consultation with the opposition spokesman in relation to this matter. In fact, there has been quite considerable discussion and I did not hear anything in Senator Macdonald’s comments that indicated otherwise.

In relation to the comments of Senator O’Brien, the two issues that he refers to are not separate to the issues that underpin this regulation; they are actually pivotal to them. They are absolutely an imperative and integral part of the safety discussion. There is no-one in this chamber and no-one in the other place who is not absolutely passionately committed to security on aeroplanes. It would beggar belief to think that we would be anything other than as one on ensuring the safety of passengers and ensuring that nothing is done to compromise it.

The residual issue in relation to off-duty pilots is absolutely fundamental to that security question. So this is not a matter that should be debated after the event. It should not be a matter that might be the subject of further amendment. It actually completely and utterly underpins the security aspect upon which the regulations are based. That is the real issue—and we have seen information from the Australian and International Pilots Association. Senator Xenophon has quite rightly referred to it. They are public documents and I would encourage people to have a look at the very examples of where passenger safety was improved by the presence of off-duty pilots. They actually save lives both in the air and on the ground. I am completely and utterly stunned about a number of things. As Senator Milne said, why would you not consult with the very group of people who you will demand to implement the policy that you want to bring in? On what basis could you not actually consult with the very group of people around which the regulation is based, to ensure passenger safety? It beggars belief as to why that was not done.

Passenger safety will actually be improved by the admission of off-duty, licensed pilots into the cockpit. Our view—and this has been expressed by Mr Truss—has been that we believe that the definition of who can have access is too narrow because it does not enable those people to have access to and join their fellow pilots in the cockpit. This ridiculous notion that was floated earlier in relation to this matter—that it was about pilots protecting rights to have family up the front of the plane in the cockpit—is quite obscene and is simply not true. The pilots themselves have made it very, very clear that they are not talking about the access of family to the cockpit. Those days are long gone, and so they should be in the current context of the threats to passenger safety. They have quite rightly said: ‘We were not consulted. We are the ones with whom the ultimate buck stops in relation to this issue with this regulation, and we were not consulted.’

The second aspect is that they are absolutely adamant that passenger safety will be improved by the ability of off-duty pilots to have access to the cockpit. That will actually improve passenger safety. I am not for one minute suggesting the government is not concerned about passenger safety and I take it at face value what the rationale for these regulations is. I do not attack the minister for the rationale behind the regulations. But I do ask: how can you not consult those who you are imposing a liability upon? And why would you not maximise passenger safety by having access of those off-duty pilots? Why would you compromise passenger safety by their not having a right to do so?

The third part of the argument, which Senator Xenophon, Senator Milne and Senator Macdonald referred to—and passenger safety is clearly paramount—is the imposition of strict liability on the pilots when they may in some cases actually be operating an aircraft and sitting in the cockpit when requests are made in relation to access. This is public documentation, to the extent that it has been widely circulated—I am very circumspect about discussions in the committee. Paragraph 29 of the opinion of Bret Walker SC reads:

The way in which the offences under Reg 4.67E are created, as offences of strict liability, is that the pilot in command will commit such an offence by permitting a person to enter or remain in the cockpit, in flight, if the person does not meet the requirements of subreg 4.67E(3) or subreg 4.67E(4): subreg 4.67E(1). The requirement for operator’s authorization does not readily adapt to circumstances that may arise during flight, and it is not necessarily the case that the general dispensing provisions of sec 10A of the Aviation Transport Security Act 2004 will avail the pilot in command. Certainly, invidious questions may arise as to whether the person protected by subsec 10A(1) includes the pilot in command whose conduct may absolve such a person under those provisions. As well as that legal question, there is a factual question, equally invidious, whether the conduct of a pilot in command could be seen as “reasonable in the circumstances”, within the meaning of para 10A(1)(d), if eg the pilot did not inspect ID or documentation concerning authorization, or did not scrutinize purported ID or documents in order to detect forgery.

This regulation refers to real-life situations. It is not someone sitting in a company’s office for a week or so prior to a flight taking off where there might be the ability for the pilot to check matters. These are real-life, real-time situations where the pilots are required to make split-second decisions and they are entitled to rely, in my view, upon what they have been given. But, under this, there is a very real risk that the pilots themselves, because of the strict liability provisions, will wear the outcome personally.

In my view it is simply not good enough to say that the test of reasonableness will be imposed. You are actually putting the onus back onto the pilots to prove that their actions were reasonable. The strict liability puts the onus back onto those pilots to say that their actions were reasonable. How can you impose strict liability upon a person who is about to take off or is in the air? I think it is totally unreasonable.

The strict liability question and the off-duty pilot issue should have been resolved this week. It was made quite clear by the opposition, the pilots, the Greens and Senator Xenophon that these are the two pivotal issues. My view is that to say, ‘We will closely look at the strict liability and the off-duty pilot issues’—to quote the minister—is, quite frankly, not good enough because, once this goes through, that strict liability is imposed upon those pilots immediately.

There has to be a sense of fairness in relation to government regulation and legislation. You cannot impose upon an individual those sorts of strict liability requirements and say that you may well look at them more closely further down the track. I do not think that is fair to the individuals involved. This should have been resolved. This should have been removed. It should have been replaced with a regulation which addressed both of these issues and then we would not be here today on the back of that.

I have had some pretty serious barneys with the pilots association over the years. I had some pretty serious barneys with them over the Qantas Sale Act and the Senate committee surrounding that. I come to this completely with clean hands, but I come here to defend the rights of individuals in this country to not have strict liability imposed on them in circumstances where they are not the masters of their own destiny, and no-one would reasonably believe that they were the masters of their own destiny.

From what I have read and heard, the pilots association have made it quite clear that the fundamental issue for them is to make sure that we improve passenger safety and not minimise it. We can improve passenger safety by having access to those off-duty pilots. The second issue is—and I will repeat it again—the strict liability offence. I think it is totally unreasonable for this parliament and legislators to impose upon a group of people, such as the pilots in this situation, this strict liability offence.