Nick Xenophon (SA, Independent) Share this | Hansard source

I move:

That the Aviation Transport Security Amendment Regulations 2009 (No. 1), as contained in Select Legislative Instrument 2009 No. 24 and made under the Aviation Transport Security Act 2004, be disallowed.

This motion disallows the Aviation Transport Security Amendment Regulations 2009, as contained in the Select Legislative Instrument 2009 No. 24 made under the Aviation Transport Security Act. While many of the provisions within this legislative instrument are worthy measures, two key components are not acceptable—hence my move to disallow.

These two provisions are internationally unprecedented and unacceptable. The first provision can be found in regulation 4.67E, where a pilot allowing an ineligible person into the cockpit is subject to an offence of strict liability. This is a significant departure from global safety practice, where airlines are always responsible for the actions of their pilots. I note that the Australian and International Pilots Association here in Australia sought advice from Bret Walker, an eminent Senior Counsel, and his advice was that the effect of these regulations is to create an offence of strict liability committed by a pilot in command if the cockpit door is not locked during flight or an ineligible person enters or remains in the cockpit during flight.

Previously, it was the operator of the aircraft rather than the pilot in command of the aircraft who would commit an offence in such circumstances. Bret Walker SC goes on to say that if the position had been that there were no such existing provisions then it would be difficult not to agree with the government that some such provisions would be necessary, but the opposite is the case. There were ample provisions—and they remain in effect—to sanction regulated cockpit access before these new regulations were made. That is the case. What the government is attempting to do is unprecedented. It is also interesting to note that there has been a lack of consultation by the government with airline pilots, contrary to standard practice, in relation to this.

This provision not only covers entry but also makes a pilot responsible if a door is left unlocked or if another person leaves the door open. Pilots should be focusing on flight safety, not flying while looking over their shoulders to see if the door is closed. More importantly, at no time has it been made clear why this provision is so necessary. I have had considerable discussion with pilot representatives about the issue and they are strongly opposed to the measure. We have a system that is operating well—it is similar to others overseas—so why do we need the change?

It is interesting that I received information from the pilots in relation to this. They have indicated to me that, in a review of overseas aviation practices, advice was sought of pilot association representatives from the United Kingdom, the United States of America, New Zealand, South Africa, France, Germany, Portugal, Greece, the Netherlands, Denmark, Finland, Norway, China and Israel regarding the respective airline aviation authority provisions on access to the flight deck. They found that what we are doing is unprecedented. It is interesting to note that that applies even to Israel. Anyone who has been to an Israeli airport knows what they are like in terms of security measures. We know how strict they are. That degree of strictness also applies to the flight deck, no doubt, yet even the Israelis are not going down this path. This is totally unnecessary and counterproductive.

There have been concerns about who can access the cockpit, and it would be good to see guidelines that stipulate pilots, crew and operators as those suitable for entry. However, one important group has not been included—that is, off-duty pilots. When emergencies occur, passengers want to know that every available resource is employed to ensure their safety. Data provided to me by a pilots association in the United States lists multiple instances where having a pilot in the jump seat has had important positive safety ramifications.

There have been a whole swag of recent jump-seat contributions. For instance, in June 2009 in an A300 there were fumes in the cabin. The note from the pilots indicated:

During climb our jump-seater stated that they smelled an oily caustic smell on takeoff roll and that it was still present. We declared an emergency and turned back for landing.

That is a case where it was a jump-seater who picked up on something. There was another instance involving the left-main cabin door of an A300 in July 2007:

A crew member in the jump seat called from the courier area. He reported the left door alarm in one position indicated between the locked green and unlocked red. There was no e-cam warning in the cockpit.

That was picked up by the jump-seat operator. That could have been a serious incident. There have been other incidents: right-inner tank fuel loss, locks being down, an unsafe pin-pull, a hydraulic leak, a gauge error, hydraulic system problems, jammed flight controls and crew member incapacitation. All those were occasions where the jump-seat pilots actually made a very positive and important contribution. These are things that we will miss out on with these particular changes. Further, a letter from the Australian and International Pilots Association reports that when similar measures to the ones proposed were attempted in the United States they adversely affected safety and security and had to be changed.

Put simply, the proposal will not make our skies safer; it will make air travel more dangerous. Further, the Australian pilots association has provided information that confirms 14 nations, which I have listed, allow jump-seat access for pilots. Unfortunately, we cannot amend this legislative instrument to add a new category of current off-duty pilots. This leaves us with the only option to disallow this regulation and call on the government to introduce it in a more appropriate form. The government will no doubt respond by saying that this will mean that we will revert back to the old system for the next six months. That is the not case. The fact is that, if the government wants to bring back a new regulation, if it wants to do so with the consent of the Senate, it can do so. It can fix this up by consulting with pilots and by consulting with the experts who know and with whom we entrust our safety. However, if the new instrument is substantially different, as I believe it must be, it could be reintroduced immediately. My understanding of Senate procedure is that we can rescind this regulation and deal with it and not be fettered by the six-month rule in relation to it. I would support the government if it chose to bring back a suitable legislative instrument, and I also strongly urge my colleagues to support rescinding the six-month rule. The government can handle this swiftly and without fuss, if it wishes, and I would encourage it to do so.

What the government should not do is use this issue to chase easy headlines about security compromises. In fact, if the government wants to talk about genuine airline security issues then I suggest that it looks to the front pages of the Australian from earlier this week. If it did, it would see retired Customs officer, Mr Allan Kessing, being persecuted and pursued for exposing serious breaches in airport security four years ago. Also, I note that Mr Kessing, in his revelations at a media conference earlier this week, went to the office of the shadow transport spokesman, now the minister, four years ago, before publication in the Australian of his concerns. Mr Kessing confirmed this week that many of the shortcomings in the process still exist today. So I say to the government: fix real security problems and do not make problems by trying to change procedures that are working. I think everyone in this chamber trusts a pilot with their life every time they come to Canberra. Surely, we should trust them when they say that there are practical problems with this proposal. I urge all senators to support this disallowance motion.