Warren Truss (Wide Bay, National Party, Leader of the Nationals) Share this | Hansard source

I am coming to subsequent events.

So the coalition government’s decision had the full support of the then opposition. The question therefore is: will the establishment of a small expert board of five members appointed by the minister, as proposed by the government, make CASA a better organisation? The government argues that CASA is a far different organisation from what it was in 2003, and I agree. According to the government, CASA is therefore now ready for a board. I guess you could equally argue, since it is doing much better than it was in 2003 without a board, that is also a case for keeping it that way.

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

There are, nevertheless, issues that bothered the Senate inquiry. The inquiry expressed concerns that some in the aviation sector feel CASA senior executives are not approachable enough. Some submissions expressed an unease that CASA’s risk based safety philosophy was at the expense of a more prescriptive regulatory approach that leaves too much responsibility with the airlines to ensure their own safety standards. CASA has experienced an enormous staff turnover since 2003. While this is characteristic of an organisation trying to change its culture and way of doing business, the Senate inquiry noted that CASA appears to lack adequately trained technical staff and seems to lack a clear plan for managing its training needs.

The inquiry also heard many complain that CASA’s regulatory review program seems to have made limited progress in the last three years. Although that progress has been handicapped by inadequate resources in the Office of Legislative Drafting and Publishing, some also argued that there were times when regulations were interpreted by some field officers in an inconsistent way. So clearly CASA faces a number of significant challenges. It can be argued with some justification that the reform process has been implemented too slowly and that the burdens and responsibilities placed upon CASA’s chief executive officer are perhaps too great.

I also note that the majority of submissions to the Senate inquiry, in contrast to what occurred prior to 2003, argued for the reinstatement of a CASA board. Qantas suggested the current governance structures are not delivering consistent policy and the responsibilities of the CEO are too broad. This point was supported by the Australian and International Pilots Association, which stated that a board would improve the capacity of the CEO to make the tough decisions needed to regulate the industry. The Aircraft Owners and Pilots Association argued a board would help CASA implement safety guidelines. The Senate inquiry in a bipartisan conclusion recommended that the Australian government strengthen CASA’s governance framework by introducing a small board of up to five members to provide enhanced oversight and strategic direction for CASA.

CASA faces an immense task in regulating an industry that is complex and assuming a greater role in Australia’s economic life. It must deal with an industry characterised by strong personalities, conflicting opinions and elements that often resent the hand of regulation. It is an industry where the consequences of a failure in safety can be catastrophic. The industry has been famous for internal conflicts and an unwillingness of the various sectors to agree and work together on issues of importance. CASA is often the point of focus and blame for issues when in fact there are wider industry issues involved.

CASA has certainly responded in a positive way to the concerns about the way in which it has operated. It is a very much better organisation today than it probably has ever been. But I think everyone would acknowledge that it still has a lot more work to do. I would also say that it probably will never be perfect. There is an expectation that CASA will keep our skies safe, and that is its job. But if it acts too heavy-handedly to enforce safety requirements then there will be complaints about it interfering in the legitimate role of business and the right of people to fly. In reality, to try and put together a satisfactory regime that can deal with all those sorts of issues is indeed a challenge.

You can also argue that, given the difficulties of the task, an organisation which both makes and enforces industry regulation should be a part of a department and answerable to a minister and not a board. I appreciate that these are issues that were dealt with in the Uhrig report, but there are issues about whether or not it is appropriate for a board to be responsible for enforcing industry regulation which it also has a responsibility to make. CASA certainly does not have an easy job and there are no easy answers as to the best way to approach aviation regulation.

I consider that Mr Bruce Byron made an outstanding contribution as CASA’s CEO over the past five years. His was a thankless and difficult task, yet he made significant progress in placing CASA on the path to be a world-class regulator that can work with the industry in a rigorous, responsive and effective way. He was well regarded across the sector, an honour achieved by few in the aviation business. I am not saying that the job is complete, but Mr Byron made a very credible contribution. CASA is a better organisation than it has ever been, and I wish Bruce good health and every happiness as he moves into retirement. I also wish the incoming CASA CEO, Mr John McCormick, all the best as he assumes his duties from 1 March this year. His extensive background in aviation will serve him well as he continues the challenges in regulating a key industry. Significant progress has been made. Mr Byron has put in place a spirit of reform and hopefully moved significantly to change the culture of CASA. Mr McCormick must now build on those reforms and take them to the next level.

In terms of the best model of governance for CASA, the opposition has accepted that the incoming CEO may appreciate the support of a board in his demanding position. Out of respect for the views of industry, recognising the efforts of CASA to reform and acknowledging the conclusion of last year’s Senate standing committee inquiry into CASA, we are prepared to support this element of the government’s legislation. We do so, of course, on the condition that the government manage the appointments of the board properly. It is to be an expert board. It is not a place to dump Labor mates looking for a reward. I call upon the government to make smart, apolitical appointments.

Appointing people who have regulatory experience, who understand community consultation and who command the respect of the aviation sector will be a key criterion if this board is to be successful. Let me say that past CASA boards have ended in tears. Both the previous government and the government before that had unhappy experiences with the board of CASA. Hopefully, we have all learnt from those lessons and, when the government sits down to appoint the members to this board, they choose wisely—they do not seek to try and have every sector of the industry represented, so that each sector has a voice on the board, but they have people there with expertise and with skill. They are going to have to be people who have the respect of the aviation sector. But, in reality, not every possible skill that is needed in the industry will be able to be included on the board. What we will need is capable people who are apolitical, have the respect of the industry and are therefore able to deliver a good outcome.

I turn to some of the more technical elements of this bill. The changes improve the enforcement powers of CASA. One such change is improving CASA’s oversight of foreign carriers. This bill inserts a new section in the Civil Aviation Act 1988 to enable CASA to consider the effectiveness of air operators and relevant foreign regulatory authorities when assessing applications authorising the operation of foreign registered aircraft flying to Australia. This is consistent with what occurs in Europe and the United States. It seems a sensible way to improve aviation safety, since it is a regrettable truth that some foreign regulatory authorities are not as rigorous as our own. This amendment has the support of the opposition.

The second significant technical change contained in this bill is to amend the automatic stay provisions of any decision by CASA to suspend, change or cancel various types of certificates and permissions in circumstances short of serious and imminent risks to air safety. Under section 31A of the Civil Aviation Amendment Act 2003 and associated regulations, if CASA decides to suspend, vary or cancel a permission—such as an air operator’s certificate—it must first give a show cause notice to the affected holder. This is to allow the subject of the direction to make a case as to why it should not apply. Section 31A provides that any such decision by CASA does not come into effect until the end of the fifth business day after CASA gives notice.

During this period, the subject of the notice may apply to the Administrative Appeals Tribunal for review of CASA’s decision. If they do so, the stay or suspension of the notice will continue until the Administrative Appeals Tribunal makes a decision, or until 90 days after CASA originally notified the holder of its decision—whichever comes first. Essentially, the current arrangements give the AAT 90 days to deal with an application. This bill removes the 90-day stay provision and requires those subject to a notice by CASA to apply to the AAT on a different basis. According to item 16 of schedule 3, under proposed new section 31A(4) of the bill, if those subject to a notice choose to ask the AAT for review, they must make the request for an order under subsection 41(2) of the Administrative Appeals Act 1975. According to page 16, paragraph 12 of the explanatory memorandum, this means that the AAT will treat such appeals on an expedited basis. I can only assume this is because a request lodged on this basis is a much narrower one. It involves requesting the AAT to make orders to extend the stay, not a general merits review of CASA’s decision, as is currently the case.

I am advised by the office of the minister that, in practical terms, this means the suspension of a notice by CASA outside the automatic five-day period will be considerably shorter than the 90-day period. It will be, according to this advice, no longer than about a week. It does seem a concern if CASA issues a direction to an air operator due to poor safety practice, only to have that order suspended for a lengthy period. The opposition is prepared to support this amendment, although we will be watching to see how it actually works in practice. We call on the minister to give an assurance in this place that the AAT will, in fact, treat any decision regarding a CASA direction in the shorter period promised. With the abolition of the 90-day limit, we would not want to see that lead to longer times in delay in dealing with these issues, rather than shorter.

The third and final significant technical change proposed in this bill is addressing the legal gap in the treatment of the consignment of carriage of dangerous goods on an aircraft. At present, this offence is dealt with on the basis of intent or recklessness. This seems unduly narrow, since the most common reason for this offence is negligence. Including negligent carriage or consignment of dangerous goods on an aircraft will enable a more tailored and appropriate prosecution. The amendment has the support of the opposition.

This bill contains a set of legislative changes to the Civil Aviation Act 1988 that should enhance the regulatory effectiveness of CASA. The key changes improving CASA’s ability to assess foreign carriers, modifying the automatic stay provisions and including the offence of negligence in the consignment or carriage of dangerous goods seem sensible administrative amendments. Reinstating the CASA board is more controversial. But, under the leadership of Mr Bruce Byron, CASA has made significant progress. A board may therefore now be appropriate and help CASA address some outstanding issues. But, I add again, boards have ended in tears in the past and will again if the government does not make sensible choices about the board membership.

I turn now to the second of the bills being dealt with in this cognate debate, the Transport Safety Investigation Amendment Bill 2009. Again, the coalition will support the bill, which is designed to enhance the independence of the Australian Transport Safety Bureau and the safety of Australian transport. The ATSB is well regarded in Australian transport and indeed around the world and is staffed by people with considerable expertise. It was created by the then coalition government in 1999.

The creation of the ATSB was part of a push to separate the responsibilities involved in maintaining the transport safety apparatus from those of ensuring that safety investigations were carried out by a body that was independent. This independence was entrenched by the passage of the Transport Safety Investigation Act 2003. Before the passage of this act there was nothing precluding the secretary from giving directions to the ATSB. Under the new arrangements, the head of the ATSB was not subject to direction from the secretary of the department in the exercise of his powers.

ATSB investigations are conducted on a no-blame basis. These investigations rely on the independent and impartial assessment of the evidence available. If an investigation were subject to outside pressure, whatever the source, the ATSB’s effectiveness in discovering the simple facts of an incident without fear or favour would be reduced. As it stands, the ATSB remains separate from transport regulators and industry participants, and it is operationally autonomous within the department. Thankfully, it has not faced conflicts of interest or external interference. The ATSB’s objectivity is closely linked to its independence, and it is critical that this independence be protected.

Transport in Australia has an enviable safety record. This is due in no small part to the vigilance of industry participants and the regulatory and investigative regimes. The effective and independent functioning of the ATSB has been an important contributor to this exemplary safety record. Past results, however, do not mean that improvements cannot be made to ensure that Australia maintains its impressive record in transport safety. Over the years, governments from both sides of politics have contributed to positive developments in transport safety. In October 2007 the then Minister for Transport and Regional Services, the Hon. Mark Vaile, announced that a review would be conducted into the relationship between the Civil Aviation Safety Authority and the Australian Transport Safety Bureau. This review was headed by Mr Russell Miller AM. The review came in response to concerns raised during the investigation of the Lockhart River air crash of 2005 and was designed to identify potential improvements in Australia’s aviation safety regime. It is worth pointing out that the Miller review repeatedly and explicitly noted that the ATSB:

… is, in practical terms, separated from normal departmental governance and treated as essentially autonomous.

The Miller review went further and declared that the Transport Safety Investigation Act:

… provides that the Executive Director is not subject to directions from the Minister or the Secretary in respect of the exercise of any of the Executive Director’s powers under the Act.

…            …            …

The powers make the Executive Director and departmental officers assigned to the ATSB effectively autonomous, not only in relation to undertaking investigations and their resultant reports, but also in relation to the broader range of powers and responsibilities under the TSI Act.

Given this, it seems clear that the ATSB is seen as being autonomous in the execution of its duties. Indeed, there is no suggestion in the Miller review that the independence of the ATSB has ever been compromised, nor have I ever heard allegations from any quarter that the ATSB is anything other than independent.

At the same time, despite the autonomy granted to and exercised by the ATSB, it remains a division of the department. As a result, the theoretical possibility remains that the independence of the ATSB could be seen to be compromised in the future. Amongst its recommendations, the Miller review proposed the option of an alternative governance structure for the ATSB which would move it out of the minister’s portfolio and enhance its administrative independence. This bill therefore is the result of some of the recommendations contained in the Miller review, which was launched by the then coalition government.

This bill will establish the ATSB as a statutory body in its own right rather than keeping it as a division of the department. This will make the ATSB visibly separate from the department. Aside from being more independent at an organisational level, becoming a statutory authority will mean the ATSB will have direct control over its own budget and personnel matters under the Financial Management and Accountability Act 1997 and the Public Service Act 1999 respectively. At the moment, decisions on these matters are made by the department. I would hope that no government would ever seek to apply pressure on the ATSB by manipulating its personnel or its budget, but I suppose that risk still exists even after this legislation. There is no evidence that such pressure has been applied in the past nor, for that matter, that anyone intends to apply it in the future. Still, it is important that the appearance of independence be backed up by the reality of independence. Giving the ATSB a free hand will ensure that these criteria are met.

Australia is a party to a number of international aviation conventions, including the Chicago convention, which stipulates that accident investigation authorities:

… shall have independence in the conduct of the investigation and have unrestricted authority over its conduct.

Under current arrangements, although remaining a departmental officer, the head of ATSB is not subject to direction in the exercise of his duty. This actually goes beyond what is required under Australia’s international obligations, so we are there already. Under the arrangements proposed by the bill, this will not change. The minister will retain the capacity to provide his views on the strategic direction being taken by the ATSB, and the ATSB must have regard to those views. Under the legislation, the ATSB will be a statutory authority in the minister’s portfolio, and it is entirely appropriate that the minister’s views on the strategic direction of the ATSB should be taken into account. Taking the minister’s views into regard does not, however, mean that the ATSB is taking direction with respect to the execution of its core functions. The provisions in this bill do not permit the minister to micromanage an investigation being carried out by the ATSB, and they do not compromise Australia’s compliance with our international obligations.

The internal structure of the ATSB will be that of a commission headed by one full-time commissioner, who will also be the CEO of the agency and whose role will be analogous to that of the executive director now. The chief commissioner will be supported by two part-time commissioners, with the prospect of more commissioners being appointed should the need arise. All appointees will be required to have a high level of expertise in some area relevant to the ATSB’s function. Given the importance of the work carried out by the ATSB, it is important that the head of the agency have the support he needs, and a commission structure such as the one proposed in the bill can achieve this.

The bill will also require the ATSB to cooperate with other agencies or individuals that have functions related to improving transport safety. This includes the transport safety authorities of other countries. This is explicitly spelt out in the legislation and is an appropriate amendment. From time to time there has been friction between the ATSB and other transport safety agencies. The Miller review examined the relationship between the ATSB and CASA and suggested that, while the relationship between the two organisations is working well at an operational level, there is tension in the relationship. The Miller review highlighted a number of instances where significant tensions existed between the two organisations. The Lockhart River crash was one of those instances. In the course of the investigation the Queensland State Coroner reported:

… I have detected a degree of animosity that I consider inimical to a productive, collaborative focus on air safety …

Given their differing roles, it is not surprising that there might be some tension between investigators and regulators. Furthermore, creative tensions can be a positive force. Professional disagreement can lead to better outcomes in the end. The tensions present following the Lockhart River crash, however, went beyond the constructive tension that one might expect.

The clauses in this legislation that have established the ATSB as a statutory authority require the ATSB to cooperate with other agencies that seek to improve transport safety. These clauses need not compromise the ATSB’s operational independence and they do not require the ATSB to deviate from its no blame approach to investigations. Explicitly spelling out the need to cooperate with other agencies and individuals will underscore the ATSB’s core function, which is to improve transport safety by means that include communicating with relevant sectors of the transport industry, the public and other transport safety agencies.

The bill gives the ATSB the capacity to delegate its powers under the act, and such a delegation would be very similar to current provisions that allow for the executive director to delegate power. The bill also authorises the ATSB to require individuals, organisations or government agencies to provide a written response within 90 days of a recommendation being made to take safety action. This authority is aimed at ensuring that the safety recommendations issued by the ATSB are given the attention they are due. We cannot expect the ATSB to fulfil its duties in ensuring a safe transport environment without requiring that other agencies and industry participants take note of its recommendations.

Australia depends on a robust transport sector. Aviation, rail, road and maritime transport have all done a great deal to contribute to the economic and social development of Australia. I am happy, therefore, to lend my support to this bill also. (Time expired)

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