Thursday, 6 March 2014
Regulations and Determinations
Disallowance of the Civil Aviation Order 48.1 Instrument 2013; Disallowance
That the Civil Aviation Order 48.1 Instrument 2013, made under subregulations 5(1), 5.55(1) and 215(3), and regulation 210A of the Civil Aviation Regulations 1988, subregulation 11.068(1) of the Civil Aviation Safety Regulations 1998, section 4 and subsection 33(3) of the Acts Interpretation Act 1901, and paragraph 28BA(1)(b) and subsection 98(4A) of the Civil Aviation Act 1988, be disallowed [F2013L00628].
The aim of this motion is to disallow the Civil Aviation Order 48.1 Instrument 2013, which outlines provisions in relation to fatigue management in the aviation industry. At the outset I want to thank the Australian International Pilots Association for their assistance in these matters. I also want to acknowledge representatives of CASA, including the director of aviation safety, who spent time discussing the regulations with me, although they were not able to address my concerns.
These regulations are in some areas a significant improvement over the existing framework. I want to make it very clear, however, that in other areas they are incredibly behind the level Australia should be aiming for as an aviation world leader and that they are, quite frankly, potentially unsafe. There is an argument that the regulations should not be disallowed, because of these improvements. But my concern is that it has taken many years for these regulations to be updated. In my view it is unlikely they will be refined or improved in the near future. That is why this disallowance motion is so important. It would force the relevant parties to go back to the table to come up with a much better outcome. It is far more likely that these regulations will be the ones we have to live with for years to come. So near enough must not be considered good enough, simply because CASA is under pressure to produce the new long-delayed rules.
Part 48 of the civil aviation order was introduced in the 1950s and was based mostly on empirical evidence from World War II and from the expansion of commercial aviation rather than any scientific knowledge or evidence. It remained largely unaltered until the 1990s, when standard industry exemptions were introduced in response to commercial demands. These exemptions were not based on available scientific evidence and instead were aimed at allowing airlines to maximise profits, regardless of the safety of their crews or passengers.
Mr Acting Deputy President Sterle, you well know—you sat on an inquiry into aviation safety several years ago—that there was a leaked email from a Jetstar pilot who had responsibility for the Perth base of Jetstar where some of the pilots complained about fatigue. The email was famously headed 'Toughen up princesses!' That is a real concern. Senator Heffernan, who was the chair of the Rural and Regional Affairs and Transport Committee, was there on the day that evidence was given.
The new rules in this instrument still retain that commercial bias. They allow operators to use fatigue risk management systems to exceed duty limits in a way that may be unsafe and not subject to any independent scrutiny. The International Civil Aviation Organisation, or ICAO, has set out requirements for fatigue management which explicitly state that regulations should be based on scientific principles and knowledge. Instead, CASA has based many of their regulations on so-called 'operational experience', a tainted concept that can mean little more than what operators are already doing. I believe, if I can put it in these terms, it is a regulatory version of 'because I said so'.
We have already seen in previous Senate inquiries that operators, including Jetstar, Pel-Air and Avtex-Skymaster, are not even meeting the poor requirements we have now. Worse, CASA does not always enforce those regulations. Its special audit of Pel-Air's FRMS, their fatigue risk management system, revealed in the Senate inquiry into aviation accident investigations—and I note that Senator Fawcett, who is in the chamber, played a critical and very constructive role in that—stated:
Previous CASA oversight did not provide sufficient evidence to confirm the Pel-Air FRMS had ever been managing fatigue risk to a necessary standard.
Another example of CASA's lax attitude, as I put it, to fatigue can be seen in the Senate's earlier inquiry into pilot training and airline safety. Responding to a question on notice regarding significant duty extensions for Jetstar crew in 2011, CASA responded:
CASA does not consider that these extensions require continual monitoring.
The duty extensions recorded in January 2011 by Jetstar were a result of flight crew agreeing to operate beyond the standard 12 hour initial limits as provided for within Civil Aviation Order 48 Exemption. No breaches of the 14 hour condition were recorded.
Yet crews had to extend beyond the maximum normal limit due to inadequate planning by Jetstar which CASA, I believe, chose to ignore. Again, CASA's position is that the duty extensions are safe 'because they said so'.
There are some new controls on extensions, but there are other permissible delays to extending a flight that may well render the changes redundant—ineffective, in a sense. This is simply not good enough. Australia should be aiming to set a world standard in aviation, not to put in place the bare minimum to scrape by. A common response to discussions about fatigue is that pilots are the only ones who can decide if they are too fatigued to fly. Even Mr McCormick, Director of Aviation Safety at CASA, apparently subscribes to this view. He stated on ABC's Four Corners in relation to the Pel-Air incident:
In the end it's only the pilot who can decide whether he is fatigued or he or she is fatigued and unable to conduct a flight.
Unfortunately, this view—while common—ignores both scientific studies of fatigue and common sense. It is also extremely concerning that CASA's Director of Aviation Safety states this, because apparently he believes it to be true. Firstly, the director should know that asking someone to describe their fatigue levels is a bit like asking someone how drunk they are. Because fatigue impairs our ability to reason and make accurate judgements, you cannot ask someone who is fatigued to make a reasoned and accurate judgement about their own fatigue levels. Like the drunk who is convinced he is fine to drive, someone who is fatigued may feel fine or think they are functioning well enough to fulfil their tasks, until circumstances prove them wrong. It is not that they are irresponsible or taking risks but simply that their ability to make the decision has been compromised. Secondly, this argument ignores the broader context in which pilots operate. They might be under pressure from their employer to work, or their workplace might have a culture of 'pushing through' sickness or fatigue. Their hours may be uncertain, and they may want to take work whenever it is available.
More importantly: fatigue is significantly under-reported by the pilots themselves. This is because pilots do not file reports on an aspect that has become a “normal” part of their daily work. Many are afraid their fatigue reports could have negative consequences for their professional future (ie reprisals by management)—a phenomenon that is growing—particularly when pilots refuse to fly because they are too fatigued. Indeed UK polling results show that 33% of pilots would not feel comfortable refusing to fly if fatigued, and of those who would, three quarters would have reservations. Once a pilot has decided they have no option but to fly, a fatigue report would be tantamount to writing the evidence for their own prosecution.
I am informed that the situation in Australia is very similar.
It makes sense, therefore, that fatigue regulations should create a safety net that takes the decisions away from pilots and from their employers and fosters a culture where 'pushing through' is no longer acceptable. My concerns relate to specific provisions in the regulations, including rest requirements in preparation for a flight, maximum flight-duty periods, delayed reporting times, extensions of duty, standby times and augmented operations. These new regulations pay nothing more than lip service to the science behind the 'window of circadian low' and instead retain 5 am as the start time for a flight-duty period that does not incur additional rest requirements. The window of circadian low, or WOCL, refers to the time when most people have their deepest sleep and the body is most likely to need sleep. The most widely accepted scientific definition of this time is between 2 am to 6 am, although CASA defines it as between 2 am and 5 am. Either way, duties starting at 5 am have a significant impact on pilots' ability to sleep during this crucial period, particularly given that pilots obviously need to be awake on average two hours before their shift begins. This start time has been carried over from the previous regulations and has its origins in commercial imperatives: if pilots can start at 5 am without penalties, then the high consumer demand for 6 am flights can be more easily met. In practice a pilot could be rostered to start at 5 am, five days a week, every week. This will obviously create a significant sleep debt in a very short period and have serious impacts on a pilot's ability to function.
I note that the regulations do include new provisions in relation to sleep opportunity where time between shifts includes a minimum number of sleep hours plus additional time for reasonable requirements of bodily functioning such as eating, washing, dressing and so on. This is an improvement on the previous regulations where all of these tasks were bundled into one relatively short rest period, and I acknowledge that.
However, there are also provisions to allow reduced rest periods in certain circumstances. It is particularly concerning that these regulations actually increase the number of hours that can be flown after reduced rest, essentially allowing a normal shift to take place even where the minimum rest requirements have not been met. This is not scientifically sound. Neither the FAA in the United States nor the EASA in Europe allow this to happen outside their minimum standards, which are 10 hours with an eight-hour sleep opportunity.
CASA has also set maximum flight duty periods beyond what other regulators consider acceptable by fixing flight duty periods at 14 hours with 10 hours at the controls. In contrast, the FAA and the EASA have set their normal maximums at 13 hours. The FAA refused to extend time at the controls to 10 hours and stated:
The FAA agrees with the overwhelming number of commenters who stated that a ten-hour flight-time limit is not justified by current scientific data. A series of studies examining the national accident rate has shown that ten hours spent at work pose a much greater risk of an accident than eight or nine hours spent at work.
It is important to note that these maximum FDPs are tightly controlled in other jurisdictions. For example, while EASA allows 14-hour FDPs as an operational extension to a duty, the other limitations it has in place mean that a pilot regularly performing these maximum duties would only be flying an average of seven days a month.
In Australia, a pattern of very long duties followed by a shorter duty can result in flying a 14-hour duty every three to four days consistently until other limitations finally come into play. Further, the changes to delayed reporting times in the regulations could extend a pilot's time awake far beyond what is considered reasonable or, if we consider the scientific research, safe. For example, the allowable flight duty period for one to two sectors is 13 hours. Given that a pilot would likely need to be awake at least two hours before the start of the FDP and that the reporting time can be delayed for four hours, a pilot could finish that FDP some 19 hours after waking up.
Even worse, the regulations allow an additional sector to be added to the pilot's FDP on top of this, increasing the total time by one hour, with 30 minutes extra at the controls. These extensions can occur in 'unforeseen operational circumstances'. While the regulations obviously need to allow extensions to take place, there should be reasonable limits in place to ensure fatigue is appropriately managed where various stand-alone extensions overlap.
The instrument also does not adequately manage the need for pre-flight rest during standby periods. It is important to note that standby cannot be equated with being off duty or even on a rest period. Being on standby presents its own challenges in relation to fatigue, because the pilot needs to remain sufficiently rested to begin a shift at any time during the standby period. For example, a pilot might be on call from the morning to the evening and end up beginning a duty just when they would be preparing to sleep in a normal situation. Anticipatory stress can also impact on sleep and rest. I believe that has not been incorporated in these regulations to any sufficient degree at all.
This part of the regulations is based purely on regulatory experience, so-called, rather than science. It is the old 'because we say so' argument again. For example, in a worst-case scenario a pilot could be on standby for 12 hours before being called out for a 14-hour duty. That duty could then be extended by an hour due to 'unforeseen operational circumstances'. That would mean the pilot would finally finish their FDP 27 hours after they first prepared to fly.
In 2007, CASA, Qantas, AIPA and the University of South Australia undertook comprehensive research into pilot fatigue. The report contributed significantly to the understanding of this issue in Australia, but its findings and research seem to have been largely ignored in the shaping of these regulations. That is extraordinary—you do not ignore compelling evidence like that. In particular the information in the report indicated that FDPs and rest facilities for augmented crews needed further refinement, which is something the regulations do not address.
The regulations regarding consultation through the fatigue safety action groups are also a concern. While the regulations account for consultation with all stakeholders when operators develop their own fatigue risk management system, there is no requirement for consultation through this process where operators choose to work according to the base regulations. This consultation process is vitally important and should be specifically mandated in the regulations. Further, the regulations should also contain a specific dispute resolution process. There are significant industry concerns about CASA's regulatory enforcement in other areas, and a mandated process would go some way towards addressing any potential issues in this area.
Essentially, while there are improvements in these regulations, we must take this opportunity to address these valid points, based on evidence, as a matter of urgency. Australia has always been considered a world leader in aviation safety, and we should seek to uphold that reputation. Scientific research can provide us with far greater insights into fatigue risks and management than ever before. There are areas of these regulations that are far behind that research and, to put it bluntly, pose a safety risk. Safety regulations should be constantly evolving in line with research and technological developments. They should not be static, as Australia's fatigue regulations have largely been for over 60 years. My reason for moving to disallow this instrument is that, if we consider the history of aviation safety regulations in Australia, we are unlikely to get a further update to these areas of concern any time soon. It may take many years.
If it has taken us 60 years to get to this point, we cannot put our trust in a short-term or even a medium-term fix. The largest group of airline pilots in Australia, AIPA, has suggested that we form an independent scientific panel to review the instrument. They have committed to accepting the panel's findings. I fully support this review prior to finalisation of these regulations. This is our chance to maintain Australia's reputation and to reclaim our position as world leader. When it comes to a dispute between the regulator or the pilots, I really have to side with the pilots. This is also our chance to save lives, and that alone should be reason to support this motion.
I rise to speak on Senator Xenophon's disallowance motion against the Civil Aviation Order 48.1 Instrument 2013. I will first correct the record. There was dialogue in the previous government, and I commend Minister Albanese, as he was then, for his willingness to engage. In fact, I remember attending a meeting with Senator Xenophon, with then Minister Albanese's staff, with Minister Truss's staff, with representatives of the Australian International Pilots Association and with CASA where we talked through this issue at length. At the end of that meeting, the position that was adopted—certainly by me—was that the disallowance should not be supported. Minister Truss's position was the same. So the comment by the opposition that we have now changed our position is not correct, and I make that point before addressing the issue at hand in any more substance.
I commend Senator Xenophon for his interest in and commitment to the aviation industry in Australia. We have worked very collaboratively on a number of aspects around regulation and other things that affect the viability and safety of aviation. I again put on record my appreciation for the engagement of both the then minister and the current minister around this issue. I have not personally changed my position from when we were dealing with this in opposition for the reason that where this brings us to is safer then where we were. I acknowledge that there are still outstanding issues, as Senator Xenophon has highlighted. But, as he has also highlighted, some of those issues leave us in much the same position as we were in previously. The previous position may not have been ideal, but we are in no worse a position now. Given that in net terms there is an improvement, I think it is appropriate to adopt those changes. I will go through why I take that position in a little more detail.
I will talk firstly about the broad context of regulatory reform and then come in a little more detail to 48.1. The regulatory reform process, as anyone engaged with the aviation industry in Australia knows, has been long and drawn out to the point of being dysfunctional because of the length of time and the different strategic approaches that CASA has taken to the reform process, particularly when it comes to the engagement of industry. I have long been an advocate of the approach taken by the former director, Mr Byron. He argued that industry, as the current subject matter experts in a particular area of operation, are probably best placed to know what will work for them and their sector.
Despite the fact that there are some rogue operators in the aviation industry, whether they be people in workshops or people operating airlines or charter companies, the vast majority of operators have invested hugely, in personal terms and in terms of their shareholders. They have a huge incentive to make sure their operations are safe because, if they have an accident, gaining insurance or contracts—particularly if they are operating in a contract environment within the resources sector—becomes almost impossible. Once an airline has an accident, re-attracting customers is difficult. So people have a huge incentive to get it right. I am a great believer that industry should be leading in the development of both regulations and standards, in conjunction with the regulator, and that only if there is a safety case that the regulator can prove should the regulator discard the industry's position.
I am aware that CASA's point of view is that the drafting of 48.1 involved working groups with industry and scientific experts, but I would have to say that CASA's track record of engagement with industry has not been wholesome. On many occasions it appears to have been a one-way process where they might have listened but did not take due regard or, in some cases, they just transmitted what they were planning to do and called it consultation. There are examples where it has worked well, but there are many where it has not. This is one area where we need to fundamentally reform the process, not only at the drafting stage but also, importantly—as Senator Xenophon has highlighted—once a regulation comes into force, because there is often very little appetite to revisit it for an extended period.
As we look at our regulatory reform process we see that not only does industry need to have a stronger voice up front in setting the regulations and the manual of standards that goes with them but also there needs to be a review mechanism where, if there are outstanding issues, there is an opportunity—a framework—for industry to have quick and effective remedy to them. Senator Xenophon mentioned the expert panel that was discussed at the meetings we had last year with then Minister Albanese's staff, Minister Truss's staff, CASA and the industry body. This concept, situated in a more structured framework, is something that I am very much pushing for as part of the review of aviation safety and regulation. I am also in discussions with the current minister's office about this concept in regard to CAO 48.1. I think the review that is being conducted by David Forsyth has terrific potential to reform how industry and the regulator engage. A key part of that—and we have seen that legislation has just been introduced in the parliament by the government—is reforming the role of the board so that we have people on the board with aviation experience.
That board's role really needs to be one of governance, as opposed to hands-off oversight, so that they are setting the strategic direction for the regulator. That strategy would go to the culture of the regulator, whether it is a big 'r' regulator—a policeman with a big stick—or further along the spectrum towards an educator and supporter. That balance in the middle needs to come through a strategic decision. So, regardless of who is the director of the regulator, we should see a consistent approach that industry can plan for and engage with—an approach that will keep the industry not only safe but viable in terms of the cost bases they have to meet. And there are many costs associated with changing or rejecting regulation.
That brings me to CAO 48.1 and this disallowance motion. As I have stated, overall it is safer, and in the areas where there are points of contention we are no worse off than we were. If we were worse off in significant areas then clearly there would be a case to reject the regulation. But, if we are no worse off and in other areas we are better off, then the travelling public and the industry are better served in finding a way to effectively and quickly review the regulation and modify those areas of concern.
Senator Xenophon mentioned the window of circadian low. Whilst I have never been a long-haul pilot, I have had many years of flying what we call reverse-cycle operations, where we fly by night—in the military's case, often using night-vision equipment, which brings fatigue issues of its own—so I am well aware of, and I am concerned by, the fact that we have had a grandfathering of that 5 am start point in these regulations. But if we are no worse off than we were before we should review that, as opposed to rejecting the whole package out of hand.
The position that I am taking on this—it is the government's position—is not to support the disallowance, but I am working with the minister's office. That is partly because many industry players, since the order was introduced in April 2013—with a transitional window to 2016—have already invested in changing how they work to meet the new regulations. And, as I have said, change does not come cheaply to industry players. Not only are we going a step backwards in safety if we adopt this disallowance but we are disadvantaging those industry players who have invested in adopting the new regulations. I am seeking to make sure that we have, in a very timely manner, the opportunity for the concerned parties in the industry—I know the Virgin Independent Pilots Association and the Qantas group have raised the concerns of, predominantly, long-haul pilots—to help select subject-matter experts who can form this independent panel to review the specific areas of concern. We would then have an independent umpire to bring a recommendation back to the minister so that he can work with the regulator to address those concerns in a timely manner.
Obviously, I cannot speak for the review being led by David Forsyth, nor the recommendations that they will bring forward, but, having met with many players from the maintenance, manufacturing, engineering and operations areas of the industry, I am aware that one of the critical things that we need is a system whereby industry can have a timely remedy to decisions of the regulator that have a material impact on their business and where the safety case is disputed by industry. Whilst, hopefully, the remedy for this will not necessarily be part of the broader regulatory reform and a change of structure, it may well be a test case of how that could work. That may then lead to ideas around how we adopt the broader regulatory system and provide an opportunity for industry to have that timely remedy.
The government will not be supporting the disallowance. I maintain the same position I have had since I was in opposition: in net terms we would do better to adopt the new 48.1. But there is a need to have that independent panel to work with industry and the regulator to review the points of concern and come up with an agreed position so that we can quickly amend that part of the regulation that needs changing.
I will first go to Senator Bilyk's contribution to the debate. It was short but not so sweet. I do not think it addressed the issues. That is not a criticism of Senator Bilyk; that is the position of the opposition. There are a number of serious issues in relation to these regulations. This is an opportunity lost to fix what is clearly a most unsatisfactory situation that still exists.
In relation to Senator Fawcett's contribution—hopefully this will not damage Senator Fawcett's preselection chances with the Liberal Party!—we are lucky to have him in this place, given his considerable expertise in aviation safety. The contribution he has made on Senate committees on this issue has been outstanding. I am very grateful to have worked with him. I think both sides of the chamber can safely say that.
But the points that he makes to rebut this motion are, in fact, points that can be used to support it—equally or with greater force. Senator Fawcett acknowledges quite openly that the length of time to change regulations is unsatisfactory and that the industry should be more involved in the process. He says, in his usual diplomatic way, that 'the track record of engagement with industry from CASA has not been a wholesome one'. That is an incredibly polite way of putting a situation where industry is incredibly frustrated and concerned, and the pilots are gobsmacked that we are left with these regulations that do not address fundamental issues of fatigue. I outlined those concerns in my earlier contribution.
There are real problems in the regulation-making process, as Senator Fawcett, with his expertise and involvement in these issues, acknowledges. We need to have a mechanism to deal with these. The independent scientific panel is something that would see a way through this. That is what we need to have. To say that we are no worse off than we were does not address the fundamental issue that these regulations are simply inadequate. While this instrument does bring us, in some respects, to a relatively safer position than the previous regulation, we must take this opportunity to address the significant concerns about this instrument. In many respects, there are huge gaps in safety, and the concern of pilots—those whom we trust to fly us from A to B around this great continent—are still there. They have serious concerns about these regulations; I have outlined those.
Senator Fawcett is right when he says that the consultation process for these regulations has been long and almost dysfunctional. We simply cannot go through this process again. We cannot sit and wait for improvements to be made—because will it be another five years or six years or will it be 60 years before this process is revisited? We need to take a proactive stance and push for something better, and now is the time and the opportunity to do so.
I hope that the government will not let CASA wipe this task off its books. I hope, from Senator Fawcett's comments, that the government will be pushing for a continual consultation and a review process and not leave these issues at a dead end. And I hope that this instrument will not become another regulatory dead end, with all the implications it has for airline safety and passenger safety in this country. I urge my colleagues to support this disallowance motion.