Senate debates

Thursday, 10 September 2009

Aviation Transport Security Amendment Regulations 2009 (No. 1)

Motion for Disallowance

10:01 am

Photo of Nick XenophonNick 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.

10:09 am

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | | Hansard source

The Aviation Transport Security Amendment Regulations 2009 close a dangerous loophole in our aviation security law. The key purpose of the regulation is to restrict who can enter the cockpit of an aircraft. The regulation makes it clear that the cockpit is reserved for persons with an operational, safety, security or training need. Hardened cockpit doors and restricting cockpit access are the last lines of defence to prevent a terrorist from using the aircraft as a weapon in an attack. Consequently, stringent rules must apply to who can open the hardened cockpit door and enter the cockpit.

The debate we are having today is essentially about one thing—that is, whether the rules of governing who can open hardened cockpit doors and enter the cockpit should be made by parliament or whether this matter should be left to the discretion of pilots. Senators know that planes have been used by and are targets of terrorists. It is well known how al-Qaeda’s Hamburg cell of terrorists trained to become pilots. Mohamed Atta was one of those pilots and senators well know his terrible deeds on 11 September 2001. On Monday this week, three people were convicted in Britain of plotting to murder thousands of people by downing at least seven airlines bound for the USA and Canada in what was intended as the largest terrorist attack since September 11. Early today, in Mexico City, a plane with 104 passengers was hijacked. It is the responsibility of the government and this parliament to ensure the security of all Australians, and with terrorists targeting planes we must ensure that aviation security measures are strong and tight.

Australia’s aviation security regime relies on a number of layers of security measures that, operating together, ensure that the travelling public is safe. The layers are designed to prevent a catastrophic event caused by persons gaining control of or destroying an aircraft. Specific measures required by legislation include screening of passengers and baggage to prevent explosives, prohibited items or weapons from getting into the cabin of an aircraft. These are things that could destroy an aircraft or be used to gain control of it.

A critical layer of aviation security is the hardened cockpit door. This is the final layer of security preventing unauthorised persons from gaining access to the cockpit and control of an aircraft. Hardened cockpit doors were part of an enhancement in aviation security around the world in 2002. On 26 November 2003 the previous government determined that, from 1 July 2004, all regular passenger transport and open-charter aircraft of 30 seats or more were to install hardened cockpit doors. This measure was seen as important enough for the previous government to fully fund the installation of hardened cockpit doors for all non-jet regional aircraft registered at the time the decision was announced.

The regulations which some senators want to disallow remove the unfettered discretion previously granted to pilots to permit any person to open the hardened cockpit door and access the cockpit. Under the cockpit access rules set out in these regulations, only people with a genuine safety, security, operational or training requirement may be permitted to enter and remain in the cockpit of an aircraft. The regulations create a strict liability offence for a pilot or company who lets an unauthorised person into the cockpit. However, importantly, the regulations make specific provision to ensure a pilot can let a person into the cockpit to protect the safety or security of the plane or its passengers. In the unfortunate situation where there is a medical or some other emergency on an aircraft, the pilot’s judgment to allow a person to access the cockpit is not fettered by this regulation.

As I noted earlier, these regulations close a loophole in the aviation transport security regulations which commenced on 10 March 2005. The previous government’s policy intention for cockpit access was to prevent persons without a security, operational or safety need from accessing the cockpit of an aircraft fitted with a hardened cockpit door. However, due to a drafting error, the 2005 regulations effectively allowed a person to enter and remain in the cockpit of an aircraft if he or she was permitted to by the pilot in command. The previous government knew about the loophole that existed late in 2005. The then Minister for Transport and Regional Services, Mr Truss, stated in a letter to the pilots association on 16 November 2005:

It is the government policy that only those people with a genuine safety, security or operational need have access to the flight deck.

The previous government knew there was a loophole, but they did not take action to fix it. If these regulations are disallowed, the legislation regarding cockpit access will return to the state it was in prior to the commencement of the regulation on 12 March this year. There will be no legal restriction on who can enter a cockpit and there will be no penalties for unauthorised access to the cockpit. If these regulations are disallowed, access to the cockpit will effectively be left to industry self-regulation. It is completely unsatisfactory for such an important measure in such a vital regulatory regime to rely on industry regulating itself. The government has made it clear to the pilots association, to the opposition and to Senator Xenophon that it will look closely at the issue of access of off-duty pilots and also at the strict liability offences in the regulations.

The government will continue to work on these matters with relevant stakeholders, including the Australian and International Pilots Association. If an agreed position can be reached, and further assessment by the Office of Transport Security determines that the integrity of the aviation security regime would not be compromised, the government will consider amending the regulations accordingly. Until that time, the Senate has a choice as to what the security regime will be for hardened cockpit doors and access to the cockpit of a plane. These regulations are important for aviation security and they should be allowed to stand, particularly while the government has said that it can work with those associations to ensure that there is consultation. More importantly, it is necessary to ensure the continued safety of airline passengers. That is the focus which the government has on this issue.

10:17 am

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

I am disappointed to hear Senator Ludwig’s speech. He has done precisely what Senator Xenophon, in moving the motion, asked him not to do; he is indicating that, because the majority of senators will be opposing this—I think they will; although I am not sure of the Greens’ position, at least one of the Independents will oppose this—we will be opening the gates to airline insecurity. We, along with all senators who will be voting for the motion to disallow the regulations, reject that out of hand. It is disingenuous for the minister to have raised that in his speech.

Before I state the grounds upon which the opposition will be supporting the motion to disallow, I indicate to Senator Wortley, the chair of the committee which put in the original disallowance motion, that I congratulate her on her courage and on her contribution to Australia in doing what is right. Senator Wortley acted very appropriately and was very courageous in carrying out her duties as chair of the committee. Not many people in the Labor Party would be prepared to stand up to Mr Albanese and wear the wrath which we know would be imposed upon those who dare to cross him, but it is good to see that there is a senator who is prepared to put her duties to the Australian public and to the Australian parliament ahead of any other consideration.

I also congratulate Senator Chris Back. As I understand—I was not a member of the committee and I am not sure how secret the dealings of the committee are—it was Senator Back who, in this committee, first raised the issue of lack of consultation and, as a result, convinced the committee that a disallowance motion should be moved. The coalition has attempted very consistently and strongly to work with the government to get a resolution to this issue. As Senator Ludwig said, some of the issues raised in the regulation are issues which our government instituted in the first instance. It was all towards making airline travel safer and securing the cockpit, making it safer for Australians to travel by air. When we saw this regulation, we were concerned about it initially. Mr Truss, as shadow transport minister, made a mighty effort to work cooperatively with Mr Albanese in relation to the regulation. As I understand, all of the loopholes—we concede there is a loophole—could be fixed on Monday with a bit of goodwill from Mr Albanese, but he has chosen to proceed with this regulation knowing that it is flawed.

The concern is that, had the minister done what he is required to do and consulted widely, we would not be in this situation today. It is because the minister did not do what he was required to do and chose to ignore those who are most involved in this—the airline pilots themselves—that we are in this situation today. The airline pilots association have made their view very clear. They do not want to widen the class of persons who have cockpit access. They do not want to include general entry to family members or friends, as is being suggested by the minister. The airline pilots association have also noted that such a general class of persons are not permitted to enter the flight deck of an airline in any flight in Australia at this time in any case. They further point out in their submissions that Australia’s professional pilots would not support any widening of the access. So we in the coalition dismiss any assertion that somehow we are compromising the security of the flight deck by supporting the disallowance motion. Access to the flight deck is suitably limited and will remain so in the immediate future.

Qantas now only permits its employees access to the jump seat in the cockpit, and then only at the pilot’s discretion. Prior to our government restricting access to the flight deck in 2005, it was commonplace for passengers to visit the flight deck at the pilot’s discretion. This was often permitted. But, as we know so well, times have changed since 11 September 2001, and the coalition government moved to responsibly restrict access to only those the airline felt appropriate to enter their flight deck. In providing airlines with the discretion to decide who entered the flight deck, the coalition in 2005 recognised the emerging world’s best practice concept of outcome based safety regulations. This concept is today the foundation principle underpinning Australia’s approach to aviation regulations and is recognised globally as the most effective way for delivering the best safety in critical industries such as aviation.

Airlines know far more about operating large aircraft worldwide than our government. That is a self-evident fact, of course. In the case of Qantas they have been doing it for nearly 90 years. Outcome based safety systems tap into this extensive knowledge and allow the airlines to figure out how to run their businesses safely and effectively. The coalition recognises this principle by permitting airlines to develop their own flight deck access plan. I am conscious of the fact—

Photo of Kerry O'BrienKerry O'Brien (Tasmania, Australian Labor Party) Share this | | Hansard source

That is just the silliest thing I have ever heard.

Photo of Steve HutchinsSteve Hutchins (NSW, Australian Labor Party) Share this | | Hansard source

Just move on and keep speaking, Senator Macdonald.

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.

10:29 am

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

I rise today to support the disallowance. The reason for this is pretty clear to me, having worked in a number of workplaces in my life. The best way to encourage increased performance is to have a culture in which people can talk about ways to improve what they do and cite examples of where things have not been done as well as they might. If you have a culture of self-improvement then you have a culture in which people report on where mistakes have been made and how things can be done better. If you introduce a criminal sanction for individuals, as this does by bringing in a criminal sanction against a pilot who for some reason does something such that the cockpit door is unlocked or some issue occurs in relation to cockpit security, then they will not report. If they know that by reporting on that they will incriminate themselves and then be liable for a serious criminal offence, you are going to introduce a culture of secrecy and cover-up and at best people turning a blind eye to things that have happened, because they do not want other people to suffer criminal consequences over matters that might be inadvertent and quite innocent.

It is appropriate that the companies have liability, because it is up to the corporation to have a culture of self-improvement and improved safety standards and it is up to airlines to institute that with their pilots. But I really do not like a scenario where a criminal sanction is introduced such that it is not in the pilot’s interests to report and to engage in real self-monitoring of the security system. It is pretty clear to me that you are changing from a culture of encouraging appropriate monitoring and appropriate self-evaluation and improvement to a culture of secrecy and cover-up. That is not in the best interests of security.

It will also cause a lot of conflict, I believe, because there will be people who think that something ought to be reported but who are reluctant to report it because they know that someone is going to suffer the consequences of criminal sanctions and so on and so forth. Everybody is clearly interested in airline security.

I concur with what Senator Macdonald has said. I have been on many flights across Bass Strait in the old days of the Focker Friendships when the pilot encouraged children on board to visit the cockpit. When we got underway, parents would ask whether their children could come up and have a look in the cockpit. That was organised. It was a pleasant and exciting thing for young people—especially if they had never been in a plane before—and it let them learn new things. It was a way of encouraging them to feel safe and secure in flying, and so on. Things have changed. Security is critical. We have to make sure that the travelling public is protected. But the best way of protecting the travelling public is to encourage a culture of openness, transparency, self-evaluation and improvement. I do not think that putting criminal sanctions on pilots is the way of doing that. In fact, it is counterproductive in an age in which we need people to be very upfront about mistakes that are made, so that we can correct those mistakes immediately and not make the travelling public vulnerable rather than cover mistakes up and perpetuate them, which might in the end lead to a disaster.

10:33 am

Photo of Kerry O'BrienKerry O'Brien (Tasmania, Australian Labor Party) Share this | | Hansard source

It was not my intention to speak in this debate, but a couple of the matters raised by Senator Macdonald provoked my intervention. Firstly, there was a suggestion that somehow it was wrong for the government to think that its view should prevail over the view of an airline seems to me to fly in the face of the proposition that we should have a government backed regulator telling the airlines what to do in the interests of safety. The suggestion advanced by Senator Macdonald has no weight at all. It is, frankly, ridiculous to say that government is not the responsible entity to enforce the safety regime for the airline industry. It is in this country. It has been for many years. It is in the rest of the world, effectively. I am not sure what provoked the senator to make the quite ridiculous suggestion that he made.

The other matter that he raised was the suggestion that Mr Truss was very keen to be involved in negotiations and consultation about this regulation and that somehow the government had failed to consult with Mr Truss about this regulation. My advice is that there have been significant consultations with Mr Truss and his staff and that of the Leader of the Opposition. Indeed, I understand that there was an understanding reached earlier this week that, on the basis of undertakings which the government was prepared to give about returning to some aspects of these regulations that are complained of, the opposition would support the passage of the regulations and not support this particular disallowance motion. For it to be suggested that somehow we have not dealt with the opposition in good faith in any way on this is preposterous and is not true. The minister, I can tell you, is quite outraged at the suggestion that there has not been proper consultation about this. And we believed that there was an agreement to pass this legislation, because some of the critical issues we were quite happy to return to.

But in the interests of aviation safety, if there are matters that can be addressed following the promulgation of this regulation, then that is the way it should be done. This should not be left in a void whilst the matters are resolved. This matter is being dealt with today because it is the last day for it to be dealt with and that has put some time pressure on things. Frankly, it would be better in the government’s opinion if the regulation were to be not disallowed and we quickly got on with dealing with some of the issues that, whilst important, are less important than the issue that underlies the whole regulation. Given that it is not something that can be resolved in a five-minute exercise, I think that would be a better outcome. It sounds as though that will not happen and the regulation will be disallowed. We think that that is a very bad thing. It really is made worse by the fact that we thought that the opposition was going to be much more responsible and reasonable on this matter.

10:37 am

Photo of Michael RonaldsonMichael 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.

10:51 am

Photo of Christopher BackChristopher Back (WA, Liberal Party) Share this | | Hansard source

I also rise to speak on the disallowance of the Aviation Transport Security Amendment Regulations 2009 (No. 1). I want to make the point initially that, as all of us in this chamber travel often, we do not need to be lectured by Senator Ludwig on aspects of airline safety. We all have a keen interest in ensuring that airline safety is at its maximum at all times for everybody in this country, both aircrew and passengers. We certainly would not dispute the right of the government of the day to legislate to ensure this, but neither does this go to that point.

I congratulate the Chair of the Regulations and Ordinances Committee. I have learnt enormously under her chairship. I draw attention to a point made already in the chamber this morning, and that is that this matter could have been dealt with expeditiously and quickly had the responsible minister taken the advice and the suggestion of the Hon. Warren Truss and dealt with this matter prior to it actually coming before us. It is not a difficult matter to finally resolve and it is disappointing that the time of the Senate is being taken this morning on this particular matter. I do not wish to repeat at length comments made already by Senator Xenophon and others, except to say this goes to a principle of equity, the principle of equity being that pilots were to have removed from them the right to determine who would be in the cockpit of their aircraft but, worse than that, criminal liability was to transfer from the airline operator to the pilot for actions over which they did not have a say and were not consulted. I have not long been in the Senate. I have long been an employer and an employee, and I certainly looked at this and said to myself: is this fair? If I were in that position, firstly, I would have been denied the opportunity to be informed of or to have commented on something that was going to affect me and, secondly, criminal liability was going to transfer to me from my employer for actions over which I had no control. I certainly took the position that that was not fair and should be dealt with.

Senator Ronaldson made some comments about the pilots. A position put to me was that, under these regulations, a pilot could fly an aircraft from Los Angeles to Sydney and then be a passenger on another aircraft of the same company from Sydney to his or her home in Melbourne and be an ineligible person. How they could be an ineligible person and not be allowed to be in the cockpit at the request of the pilot of that aircraft was just simply beyond me.

We did what the regulations required, and that was to consult with the association. Criminal liability has been outlined by Senator Ronaldson. We looked at the 50 penalty points associated with, for example, the door to the cockpit being left open. We could potentially have a situation in which a member of aircrew goes into the cockpit and the pilot, who at the time might be very busy in the midst of a storm, tells that person from the aircrew, ‘Make sure you close the door on the way out because I’m busy doing something else, I’m strapped into my seat, I’m concentrating on the instruments,’ and that person, whether deliberately or inadvertently, fails to close the cockpit door. Under these regulations, we have a scenario in which the pilot would then be criminally liable for the fact that the door had not been closed. Criminal liability, of course, turns to that person losing their employment and losing their future capacity to be able to fly commercial aircraft.

I say again, without taking more time of the Senate, that this could all have been dealt with outside this chamber had common sense prevailed. I am sure common sense will prevail so that we can return to the scenario of the government enacting correct regulations in this matter.

10:56 am

Photo of Bill HeffernanBill Heffernan (NSW, Liberal Party) Share this | | Hansard source

I think all that needs to be said has probably been said, but I would just like to make a couple of remarks and to declare an interest as I am probably the only pilot who is taking part in this debate. Joe has got one, has he? Well, there you go! I got my pilots licence in 1965.

Photo of Chris EvansChris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | | Hansard source

Now I’m scared about flying!

Photo of Bill HeffernanBill Heffernan (NSW, Liberal Party) Share this | | Hansard source

Yes, I know—it was a pretty scary bush experience for anyone that came flying with me! Four pound 10 an hour it cost. The poor bloke that taught me to fly, the late Dick Cuthbert—

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Shadow Parliamentary Secretary for Health Administration) Share this | | Hansard source

Are you current?

Photo of Bill HeffernanBill Heffernan (NSW, Liberal Party) Share this | | Hansard source

No, I am not current. It would not be hard. All I would have to do is go back for—

Photo of Cory BernardiCory Bernardi (SA, Liberal Party) Share this | | Hansard source

Senator Heffernan, please address your comments through the chair.

Photo of Bill HeffernanBill Heffernan (NSW, Liberal Party) Share this | | Hansard source

Talking about aviation safety, Dick Cuthbert got killed giving an endorsement on a Twin Comanche when the student pilot feathered one engine and turned the fuel off to the other.

I would like to clarify a couple of things about the disallowance motion by Senator Xenophon. This really is not about anyone saying we should not have the ultimate in security in airlines. That is not what this is about. This is about several issues, including the pilots. If anyone thinks that there is anything wrong with the security of Qantas or that Qantas is not a great airline, go and fly on American airlines. If you want to frighten yourself, go and fly on some of the other overseas airlines in their domestic situation—they are scary. This is not about lowering the safety standards. This is about not being obstinate. This is not about the old days when if you wanted to impress your girlfriend you took her up the front and put her in the jump seat, or about any passenger that was a bit starry eyed asking to go up and sit next to the pilot. This is about common sense. This is about assisting pilots who want to get home when there is no room in the back of the plane. This is about adding to security, not taking away from security.

The shadow minister, Warren Truss, did write to the minister and ask for a written commitment to extend the prescribed class of persons able to enter the aircraft to include off-duty crew or employees of the aircraft operator, not to someone who had taken a fancy to someone in the back of the plane. And if anyone thinks there is something wrong with the qualifications and the ability of airline pilots to be in command of the aircraft then they should not be flying in the aircraft. Our pilots are well qualified and well drilled in emergency procedures, and that has been demonstrated many times in recent days. Mr Truss also asked for a written commitment to be provided to remove the strict liability provisions. I will not go on about those because enough has been said. The pilots, in writing to the minister, simply set out a similar position. Obviously, the pilots who have been to see me were disappointed they were not consulted in the way they should have been. I have here the opinion of Bret Walker SC, which I have distributed and I would like to table in due course.

I do not doubt that Minister Anthony Albanese wants to maintain security at the highest level and I do not doubt that there has been a bureaucratic trail of indecision on this. That has been demonstrated this week. This could have been fixed up earlier in the week, as many people have said, and I think that it can be brought back in six months. As I understand it, if anyone thinks that prior to February this year there was not the security that there is now, they ought to think again. But in talking about airport security, I have full confidence in the pilot to make the right decisions and full confidence in our air security officials to make sure that security levels are high.

But there is a doubt level—not as to aircraft but as to airports. There is an ICAC inquiry underway in Sydney as to the qualifications of some of the so-called security guards who do other guard duties—not the internals of the aircraft though they are the last people to leave the aircraft after the cleaners. These people are subject to an inquiry. If the government wants to do something useful, instead of attacking the pilots, who are well-qualified, they could go and have a look at some of the airport security people who do dodgy tests where the answers are supplied to the questions before you get the questions. That has been demonstrated many times. The same companies that provide some of the labour to these security situations also provide it to the military installations. I will not name the companies to the point of embarrassment because the matter is the subject of an ICAC inquiry, but there are some dubious practices at other levels in security.

But one area where there are no dubious practices and where there is full focus on the safe flying of aircraft and the safety of the passengers and the provision of good service is in the cockpit. So this is not about airport security. I think that it has been a bureaucratic blunder and it ought to be sorted out.

11:01 am

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

I thank my colleagues for their contributions and I think that Senator Heffernan summed it all up pretty well. This is a bureaucratic blunder and it needs to be sorted out. Let us look at where the priorities are. I will just comment on what Senator Ludwig said. I trust Senator Ludwig on most things because he is a trustworthy person, but if it is a question of aircraft security I will trust the pilots. Senator Ludwig says that this will close a dangerous loophole. Well, it is dangerous for this regulation to stand given what the airline pilots have said about it.

I also think that it is very unfortunate that the government has gone down the path of invoking the terrible events of the September 11 terrorist attacks and those who were convicted only recently in the United Kingdom who were planning to blow up a number of transatlantic aircraft. So do not invoke September 11. Do not invoke terrorist attacks and planned terrorist attacks as some sort of shield to say that this is a good piece of regulation. I think it is clear that all of us want to maximise airline security and safety of passengers, but it is about how we do it and the best way of achieving it.

If the government wants to fix this up, it involves, effectively, two lines in the regulations: get rid of strict liability, and allow other pilots to sit in the jump seat—and this can be brought back very quickly. Let us reflect on what the airline pilots have said. They have said that there has been a lack of consultation and what I have been told by Australian airline pilots in relation to this is that there was no consultation on the development of these regulations with the airline pilots as required by the Legislative Instruments Act. Australian airline pilots were not advised of the development of this legislative instrument or given the opportunity to contribute to the development of a regulation that relates directly to their area of expertise and imposes criminal liability upon them. Going back to what Senator Ronaldson said about those split-second decisions, let the pilots do their job. Don’t let them have the spectre of strict liability, criminal liability, against them in terms of this.

There was no regulatory impact statement, according to the pilots, by the Office of Best Practice Regulations as required by government policy. And in terms of what Senator Back has said, Bret Walker SC has indicated that this regulatory change could have been achieved by minor amendments, but the government has not gone down that path. We have got a situation here where the pilots say that this will reduce rather than increase airline safety, that these regulations are punitive and that the regulatory change is inconsistent with global best practice. To this extent, I commend the work of Senator Wortley and Senator Back and all those who worked on the Regulations and Ordinances Committee because they have revealed what I see as significant problems with these regulations.

The Airline Pilots Association International has 58,000 members. It is based in Washington DC, and this is what they said about these proposed changes. They said:

We struggled with the issue of cockpit access here in the United States after the terrorist attacks of September 11, 2001. The initial government response was similar to what you are facing in Australia in the ban of all nonoperational crew members from the cockpit.

They went on to say:

We found that contrary to the intent of our regulators and legislators it did not increase safety and security but, in reality, adversely affected it.

So that is what we need to look at.

I think that what Senator Milne said about the issue of the culture of safety is important. What this will do is shift responsibility away from airline management and onto airline pilots. It is entirely counterproductive. That would be a retrograde step in terms of safety. I think that Senator Macdonald also made a number of important points in terms of the process here: it can be fixed with, effectively, two lines to resolve this once and for all.

I think that we need to sort this out. We need to do our job in the Senate to knock out these punitive regulations. They will be counterproductive in terms of airline safety. The government can go back to the drawing board and with some simple, clear and relatively minor amendments we can sort this out once and for all, and I urge all honourable senators to disallow these regulations.

11:06 am

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

On behalf of Senator Heffernan, I seek to table the legal opinion to which he referred in his speech.

Photo of Chris EvansChris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | | Hansard source

Have you showed it to anyone?

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

I have not but I am not sure about Senator Heffernan. I did overhear—

Photo of Chris EvansChris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | | Hansard source

We will, provided we have had a chance to have a look at it. Given Senator Heffernan’s form in the past, quite frankly I do want to see it. But leave will be granted if we have had a look at it.

Photo of Cory BernardiCory Bernardi (SA, Liberal Party) Share this | | Hansard source

For the benefit of the chamber, I have been advised by the Clerk that this evidence has already been tabled as part of the committee’s report. I explained that to Senator Heffernan, but he asked once again that it be tabled. So was leave granted, Senator Evans?

Photo of Chris EvansChris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | | Hansard source

I just want to have a look at it first.

Leave granted.

The Acting Deputy President:

The question is that the motion moved by Senator Xenophon be agreed to.

Question agreed to.