Senate debates

Thursday, 10 September 2009

Aviation Transport Security Amendment Regulations 2009 (No. 1)

Motion for Disallowance

10:17 am

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Hansard source

Thank you. I am not sure why I would ever be interrupted by anything Senator O’Brien might say. I do not think he has made a worthwhile contribution to any debate for a long time, but I am sure we will hear his expert opinion on this matter later. I was going on to say that I am conscious of the fact that there are a number of my colleagues who want to speak on this issue. Accordingly, I will not be taking my full allowable time so that we do not delay the Senate unnecessarily.

We are concerned about the strict liability issue. If the government feels it necessary to close a possible legal loophole that may give undue discretion to a pilot in permitting access to the cockpit of the plane with a secure door, then clearly the coalition supports this. The coalition, like the government, is committed to a robust aviation security regime and is prepared to work constructively with the government to this end.

In dealing with this loophole the regulations impose a penalty of strict liability upon the airline company if they permit a person onto the flight deck outside of the prescribed class, and the coalition is happy with this provision. However, the regulations also impose a strict liability offence of 50 penalty units upon the pilot if they permit an ineligible person to enter the flight deck. In both these cases—the imposition of the penalty of strict liability upon the pilot regarding an unlocked door and ineligible access to the flight deck—we believe the regulations have gone too far. The people most involved in this are of course those who fly the planes and they have made very good submissions on why this is so.

I could refer the Senate to the legal advice on these regulations prepared by one of Australia’s leading barristers, Mr Bret Walker SC, that strict liability unreasonably places the burden of evidence upon an individual pilot in command, and to the coalition this seems unreasonable. It also seems unduly harsh to impose a strict liability offence upon the pilot where the state of mind is not a defence. In the normal operational flying environment pilots are harnessed in their seat and are occupied with the demands of flying. In many cases they cannot even reach around and close the door. While pilots are extremely mindful of cockpit security—probably more so than anyone else—to hold them strictly liable for any transgression, rather than their employer, seems unreasonable and excessive. Mr Walker also quite correctly points out that the imposition of criminal sanctions upon pilots is disproportionate and unnecessary. He points out that the increasing risk of these punitive sanctions upon skilled professionals such as pilots only diminishes safety as it increases the fear of self-incrimination. This would obviously inhibit self-reporting—one of the key safety features of a mature aviation safety system. By inhibiting reporting, these security provisions actually reduce safety.

I further point out Mr Walker’s point that the shortcomings of paragraph 227(1A)(b) of the Civil Aviation Regulations 1988 that may give undue discretion to pilots in determining flight deck access could have been dealt with by just amending it so that pilot permission could be only for a safety, security, operational or training purpose. We believe, as most independent observers do, that the making of regulation 4.67E, which removes the application of paragraph 227(1A)(b) and includes a penalty of strict liability, is unnecessary and excessive. The transference of criminal liability also undermines an important global principle that airlines are responsible for the operational actions of their pilots. It must be remembered that airlines control flight operations, standards, training and checking, and any other approach runs the risk that airlines could attempt to duck their responsibility for accidents. There is a lot more that could be said and will be said by my colleagues.

I finish by indicating again that we will be supporting the motion for disallowance. I plead with the government to properly consult not only with the airline pilots but with other senators in this chamber and the shadow minister, Mr Truss, who stands willing, as he has over the last several days and several weeks, to get a resolution to this issue. I would urge the government to work with goodwill with other parties to ensure that we can get regulations that are fair and reasonable and ensure the safety and security of the travelling public.

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